1. The only way Texas can have juris. per § 152.201 is that at the time of filing suit:
   1. Texas was the kids' home state; or
      
   2. Texas was the kids' home state within 6 mos. of filing but if the kids are absent, one of the parents still lives in Texas; or
   3. a ct. in another state doesn't have juris. under (1) or (2) above or the kids' home state declines juris. in favor of Texas and (a) the kids and at least one parent have a significant contact with Texas other than mere physical presence and (b) substantial evidence is located in Texas concerning the kids' care, etc.
   4. all courts having juris under (1) or (2) have declined juris. in favor of Texas as the most appropriate forum.

   (O.K. Take a break, drink something, relax, take an aspirin and let=s continue.)

   Texas wasn't the kids' home state when H filed suit in Feb. '01 nor was it the home state 6 mos prior thereto (Sept. 2000) nor was H or W living in Texas in Sept. 2000 so no juris. under (1) or (2) above. The critical time period to determine juris. is when H filed suit in Texas (Feb. '01). In Feb. '01 the kids' home state was Ark. (been there over a year) so the Oct. 2000 Qatar decree declining juris. in favor of Texas was ineffective as Qatar wasn't the kids' home state in Feb. '01. Qatar declining juris. in favor of Texas doesn't confer juris. on Texas unless Texas already has juris. under the UCCJAE so no juris. under (3) above. Lastly, Texas doesn't have juris. under (4) above because Ark. was the kids' home state in Feb. '01 and it hasn't declined juris. in Texas' favor.

2. What could H have done to confer juris. in Texas?
   1. In Nov. '99 when H filed suit in Qatar which was before Ark. had become the kids' home state (they had only been there two months), he could have asked the Qatar Ct. to decline SAPCR juris. in favor of Texas.
   2. Within 6 mos of the kids moving to Ark., H could have filed suit in Texas and asked the Qatar Ct. to immediately defer juris. to Texas.

Alimony award affirmed. There is no authority outlining the evidence required to prove incapacity in an alimony suit. There is no statutory requirement that incapacity be proven by expert testimony. Lay testimony may be used to prove incapacity and duration.

Comment - Since appellate review on this alimony award is on an abuse of discretion standard, I am highly suspect of awarding "permanent" alimony on the testimony of one of the parties with or without some oath-helping lay witnesses. If W's medical condition was so bad, surely some physician could confirm it. Leaving a matter of this magnitude to the discretion of the T/C without expert medical testimony is just begging for trouble. This case may not be good law but it's the only one we have so far on this point.

CA affirmed as:

1. M's physical appearance (or by written pleadings) in open court after D filed his counter-claim has the same force and effect as if M had been served with D's counter-claim (TRCP 120)

2. D's counter-claim was served on M by TRCP 21a thus no further service was required.

Comment - Over the years, I've heard people argue that you have to actually physically serve a counter-claim for the counter-claim to be valid. I've never agreed with this and here's the case to prove it.

Reversed. The T/C has no discretion in increasing or decreasing the interest on accrued c/s. It is the ministerial duty of the T/C to confirm the c/s arrearage and award the interest thereon as provided by statute.

Reversed and remanded in favor of the T.V. station. Chapter 42 does not contain any requirement for a party to report a child abduction so no cause of action lies for not advising D. Merely interviewing the abductress is not aiding or abetting the abduction, retention or concealment of the child.

Comment - Whoa! A person is held in contempt without a hearing, in absentia, and without physically appearing before the ct. which held her in contempt? If a T/C had done this, the 1st CA would have apoplexy citing all kinds of violations of the constitution plus Ex parte Johnson, (654/415). Although the CA cites 2 cases saying they can do what they did, why should the CA be any different from a T/C which can't hold someone in contempt unless that person is physically before the ct. and given the opportunity to defend himself or herself? I guess the king can do no wrong even if the Supreme Court has never condoned such star chamber procedures.

Affirmed. There is a conflict between the TRCP and § 85.001. § 85.001 only requires the general findings of family violence and future likelihood which is to be set forth in the protective order. Since the TRCP is a general rule and § 85.001 is a specific statute, the specific prevails over the general so a T/C does not have to make findings of fact and conclusions of law in a protective order proceeding.

CA affirms. In '91 a spouse couldn't be ordered to pay alimony. Alimony only came into existence by way of contract and could only be enforced by a breach of contract suit. Since the alimony awarded to W in '91 was not authorized by statute, it cannot be enforced by contempt. W argues that § 8.009 now makes alimony enforceable by contempt. The CA notes that § 8.009 didn't come into effect until 9/1/95 and only applies to actions filed on or after that date. Since W & H's divorce was filed prior to 9/1/95, the alimony award wasn't contempt enforceable.

Comment - Well this solves some problems but the CA's rationalization on the effective date of § 8.009 raises a possible problem. Assume you enter into a contractual alimony agreement in a suit filed after 9/1/95, is that now enforceable by contempt? Probably not assuming that the decree is properly worded so there's no doubt that this is a contractual obligation. If you merely say that H agrees to pay W alimony and the T/C Aorders and decrees@, you may have contempt enforceable alimony. Don't get pencil whipped.

Comment - There's nothing wrong with the foregoing but the CA went on to say that since this is a temp. order, the order should contain specific language either setting or waiving a bond per TRCP 693a. Excuse me? Is this order an injunction? Even if it is, does it have to contain a bond waiver? The CA cites no authority for its dicta statement but if you practice in the Bmt. CA's jurisdiction (Montgomery County), start putting a bond waiver provision in all your temp. orders.

Comment - The person denied meaningful visitation in R.D.Y. has filed a pet. for review with the Supremes. Hopefully this pet. will be granted and R.D.Y. will be reversed.

CA reversed saying:

1. Piercing the corp. veil in a divorce context means the court can take specific assets out of the corp. and declare it to be community property so it can be divided between the spouses (normally to the spouse not in control of the corp.)

2. Generally, a T/C only pierces the corp. veil when there is no other community property to award the "innocent" spouse.

3. To pierce, the T/C must find:
   1. unity between the spouse and the sep. prop. corp. such that the separateness of the corp. has ceased to exist.
   2. the spouse's improper use of the corp. damaged the community estate beyond that which might be remedied by reimbursement.

4. Mere domination of corp. affairs by a sole stockholder or financial unity between the shareholder and the corp. will not justify disregarding the corp. entity.

5. The facts in this case show that instead of converting community property into the corporate property of a sep. prop. corp., the corp's property was converted into community property. H's wrongful activities actually increased the community estate, not the other way around. Since the community estate wasn't damaged, you can't pierce the corp. veil.

6. You can't use the alter ego piercing concept when the sep. prop. entity is a partnership. You can't treat a partnership like a corp. - they are different legal creatures.

Comment - WOW! This is the first case I've read that says to pierce the veil of a sep. prop. corp., even if it's a spouse's alter ego, you must show that the community estate has been damaged by converting community property into the property of the corp. If this is good law, it's going to be doubly hard to pierce a sep. prop. corp. veil. Imagine what can be done with a corp. controlled by a spouse (or owned 100% as that spouse's sep. prop.) to purchase property in the corp's name rather than in the community's name so upon divorce the other spouse gets zip. According to this case, this is o.k. so long as no community prop. was converted into the corp's property. I imagine this case is going to cause all kinds of waves in legal circles and commentators are going to have a field day.

1. In response to H's claim that Marfa's protective order conflicts with the SAPCR order of the ct. of continuing juris. (El Paso) and El Paso is the only ct. that has juris. over this matter, § 83.005 and § 82.007 clearly show that a ct. other than a ct. of continuing juris. may grant protective orders even if they contradict the SAPCR order of the original ct. § 83.005 also recognizes there may be a conflict between the orders of the 2 cts and resolves that conflict in favor of the protective order ct.

2. Responding to H's claim that venue in this matter is in El Paso, not Marfa, § 82.003 says an application for protective order can be filed in the county in which the applicant or respondent resides but none of the statutes define the residency of a child for protective order purposes. The CA doesn't answer this question as H didn't raise this issue at trial so he waived it.

3. H also claimed that the Marfa T/C erred by not transferring the whole matter to the El Paso ct. Although § 85.064(b) and (c) allow such a transfer, H didn't file a motion to transfer under these sections so the complaint is waived.

Comment - As pointed out by Justice McClure, the conflicts between the authority of a ct. of continuing juris. and a protective order ct. is troubling. A & B divorce in County 1 with A awarded custody. While visiting with B in County 2, B files for a protective order in County 2 which grants same giving exclusive custody to B. The protective order is for 2 yrs. After 9 mos. B files a motion to change custody in County 1 together with a motion to transfer to County 2 as the child has lived there for 9 mos. (mandatory transfer?). What if A had filed a motion to transfer the protective order proceeding to County 1 but County 2 denies the permissive transfer (§ 85.064). Can this be appealed? Waco says No (Normand, 940/401) but San Antonio says Yes (James, 985/516). Unfortunately, El Paso declined to answer this conflict.