2. Koch v. Koch, No. 04-99-00602-CV, not yet published (CA, San Antonio).
H & W married in '86 with a pre-nup which called for arbitration in the event either party filed for divorce. H filed for divorce & requested arbitration. The arbitrator conducted hearings and filed an arbitration award. W filed a motion to enter a decree per the award. H filed a motion to modify/vacate the award which the T/C granted thus setting aside the award. T/C then tried the divorce and rendered its judgment. W appeals on the basis that the T/C had no authority to set aside the arbitration award. CA reversed. § 171.089, Tex.Civ.Prac. & Rem. Code, and various other sections under the arbitration statute allow a T/C to modify the award or send it back to the arbitrator for rehearing or even appoint a new arbitrator but no where can the T/C set aside the award and proceed to trial.

3. Elliott v. Elliott, No. 2-99-207-CV, not yet published (CA, Ft. Worth). H & W married in '86 and divorced in '94. W wasn't represented by an atty despite many people advising her to retain one. H & W signed an AID whereby H got 45% of the family corp. & W got 5% (H's grandmother had the other 50%). H also agreed to pay most of the community's considerable debt and kept W employed by the corp. for 4 years at $1,800/mo salary. W also received other property. In '98 (I guess it was just a coincidence that the $1,800/mo stopped), W filed a B of R claiming that she was nuts when she signed the AID (we all know that all divorcing people are nuts during the divorce - its just a matter of degree) and H committed fraud. H filed a motion for a pre-hearing per Baker v. Goldsmith (582/404) to see if W could present a prima facie proof of a meritorious defense. T/C found that W failed to present such proof & dismissed W's B of R resulting in this appeal. CA affirmed holding:

1. Whether a prima facie defense is presented is a law question decided by the T/C
2. All factual questions are resolved in favor of the Pl. in the pre-trial
3. A "meritorious defense" is proved if the Pl. can prove that Pl. would have:
   (1) obtained a modification of the judgment with a more favorable result on retrial or (2) obtained a more favorable property division on retrial
4. W's evidence on being crazy was only relevant to the lack of negligence on her part - not whether she would have received more property on retrial
5. W presented no evidence regarding the values of the property in issue or that H=s representations as to value were wrong thus there was no basis to find that she would have received more on retrial.

Comment - Altho this case is not shocking, it is a good case to keep in mind on B of R cases as it summarizes the law on pre-trials & defines what is a "meritorious defense" in a divorce B of R.

4. In re: Burgett, No. 06-00-00066-CV, not yet published (CA, Texarkana).
W filed for divorce. The parties agreed to a trial scheduling order but nothing was mentioned about a time to file 3rd party actions against 3rd parties. A few weeks before trial W took X's depo and discovered that some time ago X & H entered into an unwritten handshake deal whereby H had bought X's company for $9 million represented by an oral promissory note bearing 10% interest. H had been operating the company as if he owned it but only $150,000 in assets had been transferred to H. The company & H, using company and/or community funds for more than a year, had been paying X $100,000 to $200,000 a month (apparently unknown to W). In the depo X claimed that these payments were either lease payments or were interest on the oral note and H didn't own the company. Immediately following the depo, W filed a 3rd party action against X and the company and an add'l action against H for fraud, conspiracy, and breach of fiduciary duty, i.e., either H & X were conspiring to siphon off millions in community money on a sham deal (H really didn't own the company) or H owned the company and it was a part of the community (apparently H & X said the company wasn't a part of the community). H & X filed a motion to sever W's fraud, etc. claims and proceed with the divorce. The T/C found that if the "tort claims" were not severed, the T/C couldn't adhere to the trial scheduling order and the "tort claims" were not so interwoven with the divorce action that they involved the same facts & issues. Severance granted. W filed mandamus to set aside the severance which the CA granted. In order to determine the extent and value of the community property W's fraud and conspiracy issues had to be resolved during the divorce. If X and the company were severed out, any finding as to the community ownership of the company wouldn't be binding on X which might result in conflicting findings in a 2nd trial involving X. The T/C has an option: (1) try everything together or (2) try the "tort claims" against H, the company and X before trying the divorce. Much to the chagrin of the T/C, "The ultimate justice of the case and the ultimate finality of all issues sometimes requires the altering of scheduling orders."

Comment - Unlike the 10 Commandments, scheduling orders are not carved in stone - blind adherence to scheduling orders (as some judges do) can be erroneous. Interestingly it appears that the CA says if you have claims against 3rd parties and those claims are community assets, you must try them with the divorce or resolve such before trying the divorce. Would the result be the same if a spouse knew of these claims long prior to the scheduled trial but waited just before trial to file same in hopes of delaying the divorce? I guess the T/C could have avoided this by putting in the scheduling order a specific time to bring 3rd parties but I doubt if this would be effective where one of the spouses, using due diligence, didn=t discover the existence of the 3rd party action until after the scheduling order cut-off date.

5. In the Interest of C.Q.T.M., No. 10-99-193-CV, not yet published (CA, Waco).
F gave birth to a child and filed a paternity suit against M who acknowledged paternity and sought custody of the child. In a jury trial M won custody. Sometime later F filed a motion to change custody and a jury trial ensued in which the T/C admitted evidence, over objection, that F's new husband had a child from a previous marriage; he had signed an aff. agreeing to terminate his parent/child relationship with his child; had not paid his c/s; and he had been held in contempt for not paying c/s for his other child. The jury denied F's requested modification so she appealed. CA affirmed. These facts are relevant to F's husband's parenting abilities, the relationship the new husband will have with F's child; the stability of F and her new husband's home; and the best interest of the child. F's argument that this evidence is outweighed by the danger of unfair prejudice (Rule 403) is not sound. Since the best interest of the child is the primary concern, application of Rule 403 "is an extraordinary remedy that must be used sparingly."

Comment - In a modification suit where either party has remarried, the warts and fly-specks on the new spouses are fair game and fully admissible.

6. Friermood v. Friermood, No. 14-99-00328-CV, not yet published (CA, Houston-14th). H & W divorced in May '98 per a Feb. '97 mediated settlement agreement whereby H agreed to pay $1,300/mo c/s for 2 kids. 3 mos. later H filed a motion to reduce his c/s as his net income was only $1,385/mo so his c/s should be $351/mo. T/C reduced his c/s to $662/mo. and H appeals claiming the T/C erred by not applying the 25% guidelines to reduce his c/s to $351/mo. CA affirms. Altho there was a lot of contradictory evidence as to H's income, even if his net resources were $1,385/mo., in a modification proceeding, the T/C's use of the percentage guidelines in the F/C is discretionary, not mandatory (Escue, 810/845). Taking everything into consideration, the T/C did not abuse its discretion.