H & W divorced in '91 with one kid. H & W were designated JMC's of the kid with W having the right to determine the kid's domicile and primary residence. W and child moved to Colo. in Nov. '95 and remain there today. In April '97 H filed in the original divorce ct. a motion to modify requesting that H be granted the right to determine the domicile and primary residence of the kid. W filed a motion to dismiss presumably under § 155.003(b) as everyone agreed that Colo. was the child's new home state thus Texas no longer had the juris. to change the child's custody (conservatorship) as opposed to visitation rights.

T/C dismissed and H appealed. CA reversed (971/127). "Custody" means "managing conservatorship" per § 152.002(2). "Visitation" means "possession of or access to a child" per § 152.002(11). The right to establish domicile and primary residence is just a part of the right to "possession of or access to a child," i.e., it's a visitation element. H did not request a change of the kid's custody (conservatorship), only a change of the terms of "possession/access." Both parents remain the JMC - no change of conservatorship.

The Supremes reversed the CA and affirmed the T/C holding that a motion to modify the right to determine the child's domicile & primary residence is a motion to modify custody under the UCCJA which is prohibited under Texas law if the child has established a new home state by being absent from Texas for more than 6 mos. In short, the right to determine domicile & primary residence is a custody issue not a visitation issue.

Comment - It is always rewarding when the Supremes agree with me since I said the same thing back in July '98. This finally puts to rest the issue of the custody modification of a Texas decree where the child has established a new home state. Right? Wrong! Effective 9/1/99 the Texas UCCJA (§ 152.001) is replaced with the UCCJEA which says in § 152.202 that Texas has exclusive continuing jurisdiction to modify a Texas custody decree even if the child has established a new home state unless the T/C determines that neither the child nor one parent and the child has a significant connection with Texas and substantial evidence is no longer available in Texas concerning the child. The old law where six months gone (new home state) ends Texas' right to modify custody is dead. Under the UCCJEA, the W in Beaber would have the burden to prove that: (1) her child or she and her child have no significant Texas connection and (2) there is no substantial evidence in Texas concerning the child. If she fails to prove either (1) or (2), Texas retains custody juris. The simple rule of the UCCJA just got complex. I assume the 2 prong juris. test in the UCCJEA is a jury issue so now we have to have bifurcated trials - 1st to determine juris. and, if we do, a 2nd to determine if the requested modification is to be granted. The cost of litigation just goes up & up.

2. Vickery v. Vickery, No. 98-0059, 42 Tex.Sup.Ct.J. 32.

In Dec. '97, the 1st CA issued its unpublished opinion that in a divorce context a breach of fiduciary duty by a spouse gives rise to an independent tort for breach of fiduciary duty. Mr. Vickery filed his petition for review with the Supremes which was pending when the Supremes issued their opinion in Schlueter (975/584) holding that there was no independent cause of action for breach of fiduciary duty in a divorce context. Justice Hecht dissented and commented that Schlueter will cause Vickery to be reversed. Did it? Nope. For reasons I can't comprehend, the Supremes denied the Vickery petition for review even tho the 1st CA's opinion directly conflicts with Schlueter. Justice Hecht filed a published dissenting opinion to the denial of the petition for review to which he attached a copy of the 1st CA's unpublished opinion. Quoting Justice Hecht, "It is awfully hard to insist on others' adherence to the rule of law when one's own commitment to the rule is, shall we say, intermittent." Does the attachment of the unpublished opinion to Hecht's published dissent make it a published opinion? No, thank God. The 1st CA's opinion in Vickery is still not authority for anything.

3. Moore v. Brown, No. 2-98-322-CV, not yet published (CA, Ft. Worth).

H & W were divorced in '79 with H ordered to pay c/s. H didn't pay so in '91 W was awarded a $ judgment against H for $15,441 which didn't bear interest. The '91 judgment said that H's '79 c/s of $75/mo was to continue with nothing applied against the $15,441 until Nov. '96 when the child became 18 whereupon H was to pay $225/mo until the $15,441 was paid in full (5.7 years later). In April '98, W filed a motion to modify the '79 and '91 judgments to add interest to the $15,441 and increase the am't of the monthly installments. H filed a motion for S/J claiming the T/C had no juris. to modify the '91 judgment which the T/C granted.

CA affirmed. Altho § 155.003(a) and § 156.001 grant a T/C continuing juris. to modify c/s, this juris. ends when the child reaches 18 thus the T/C can't modify a c/s arrearage order but the T/C can enforce a pre-18 c/s arrearage order after 18 per § 157.269. Even if the T/C screwed up in '91 by not awarding pre- and post-judgment interest on the $15,441, W can't complain 7 yrs later as the T/C loses juris. to modify after the expiration of the 30 day plenary period (res judicata).

Comment - Good decision. I wonder how this case will impact on the San Antonio class action suit where the Pls. are suing to have all the AG c/s orders which didn't provide for interest be modified to set forth interest as of the date of the original order?

4. Gone v. Gone, No. 14-98-00648-CV, not yet published (CA, Houston-14th).

W filed for divorce & had H served with citation. H didn't file an answer so W took a default divorce in Dec. '94 which gave her the bulk of the parties' community property. H didn't learn of the divorce until several years later when he filed a B of R to set aside the decree. To prevail in a B of R, H had to prove: (1) he had a meritorious defense (2) which he was prevented from making by W's extrinsic fraud (3) unmixed with his fault or negligence. As to W's fraud, H testified that after he was served W told him "not to worry about divorce" and "he trusted his W." W denied making such a statement. T/C found that H was lying & W was telling the truth.

T/C's denial of the B of R was affirmed. H's failure to file an answer was negligence on his part thus he didn't prove one element of the B of R.

Comment - I don't think this is any departure from established case law but it does emphasize that failure to file an answer is negligence which must be negated or explained in a B of R suit.

5. Wilkerson v. Wilkerson, No. 3-97-00323-CV, not yet published (CA, Ft. Worth).

In Feb. '78 H signed a contract for deed to buy Black Acre. H & W started dating thereafter and married in May '80. Prior to marriage, H told W that they would pay off the contract for deed after marriage so the land would belong to them. After marriage, using community $ and labor, a home was built on the land. After the contract for deed was paid with community $, the deed was put in the name of H & W. In Feb. '97 the parties divorced. During the trial it was undisputed that community $ and labor was used to pay off the contract for deed & construct the house but no specific amounts or values were established. T/C found that Black Acre was community property & awarded it to H subject to a $85,000 owelty lien to W. H appealed. CA reversed finding:

1. Black Acre is H's separate property as his right to acquire it occurred prior to marriage - inception of title and relation back.
2. Although W's name was on the deed, this did not change the separate character (H's) of the property unless H made a gift to W or he transferred title to her after he acquired title. H denied making a gift & W didn't claim a gift.
3. A T/C can't impose a lien on H's separate property to secure a just and right division of the parties' community property. Heggen v. Pemelton (836/145).
4. The only way to get a lien on H's separate property would be to prove a reimbursement claim per Pennick (783/194) or Vallone (644/455) but there was no evidence showing a specific am't paid to reduce or pay off the contract for deed balance during marriage or the enhanced value to the property due to the use of community effort or $ to construct improvements thus there was no evidence to support the $85,000 judgment.
5. Even tho H promised before marriage that Black Acre "was to be theirs," the T/C can't use a constructive trust theory per Andrews (677/171) to declare the property community because there was no fiduciary relationship between H & W in Feb. '78 when H originally contracted to buy the land.

Comment - I'm not sure the CA is correct in d. when you consider the CA's opinion in Anderson v. Gilliland (677/105) which the Supremes affirmed but the rest is o.k.

6. In the Interest of V.L.K., No. 2-98-102-CV, not yet published (CA, Ft. Worth).

W signed an agreed order whereby her mother became the M/C of W's child with W as P/C. Later X (who had the physical possession of the child for more than 6 mos.) filed a motion to modify so X would be a JMC with mom. W then filed a motion to modify requesting that she be the child's sole M/C. Jury trial. The T/C ruled that it did not have to instruct the jury that it was presumed that W, as the child's parent, should be appointed the child's M/C unless doing so would significantly impair the child's physical health or emotional development. The jury found for X & W appealed.

CA reversed holding that the parent presumption rule in § 153.151 applies (and the jury should be instructed as to such presumption) in any original custody proceeding; in any subsequent modification proceeding involving a non-parent, where the non-parent was not a party to the earlier suit; and probably in any subsequent modification proceeding where the non-parent was a party.

1st - In 1985 H buys a non-homestead house for $100,000 with $10,000 down and a $90,000 mortgage. H's purchase was a steal as the house had a FMV of $105,000. In 1989 when the mortgage was $85,000 and the house's FMV was $120,000, H marries. After marriage, the community pays on the house mortgage. At the time of divorce filing, the mortgage was $80,000 and the house's FMV was $135,000. At time of divorce, the mortgage is $75,000 and the house's FMV is $140,000.

2nd - Everything is the same except at time of divorce filing the house's FMV was $125,000 but at the time of divorce its FMV was $120,000.

Mail your answers to me at 2920 Virginia, Houston, Texas 77098, or fax me at 713/630-0099, or e-mail at dng@graymoore.com. The correct answers, and those of you who got them right, will be announced next month. Any comments you wish to make on the new law are welcomed. Good luck!

1. The use of community property to discharge all or part of a debt on separate property owned by a spouse during a marriage creates an equitable interest of the community estate in the separate property.

2. The equitable interest created under Subsection (a) in the enhanced value of separate property due to financial contributions made with community property is computed by multiplying the net enhanced value of the separate property by the sum created by dividing:
   1. the total amount of the payments made by the community estate to reduce the principal of the debt on the separate property; by
   2. the sum of:
      1. the amount computed under Subdivision (1);
      2. the total amount of the payments made by the separate estate to reduce the principal on the debt; and
      3. the total amount of any additional amount spent by the separate estate to acquire the interest in the property.

3. For purposes of this section, the cost of any improvements made to the separate property paid for by either the separate or community estate is included as part of the principal of the debt.