1. Where you have a combined jury and non-jury trial, those matters in which the jury makes binding findings are not subject to TRCP 296; however, where the judge decides some of the issues, the T/C must make fact findings on those issues if properly requested & reminded per TRCP 296 & 297.

2. Where the property division is appealed, an appellate court can't determine if the T/C abused its discretion unless the T/C makes value and character findings as to the individual items of community property and/or debts. Despite the 1st CA's holding in Wallace (623/723) and Finch (825/218), a T/C commits reversible error by not making value findings on the specific community assets (or debt am'ts) divided unless the appellate record affirmatively shows that the appealing party suffered no injury by the failure to make such findings. Does the T/C have to make value findings on each pot & pan? Not necessarily - just on property or debts where the value or am't are contested trial issues. "... any questions that can properly be submitted to a jury should be worthy of a finding by the judge in a bench trial."

Comment - Hopefully T/Cs and the 1st CA will listen and embrace the compelling logic and rationale of Justice McClure so that value (or debt am't) findings will be made without further discussion. Of course this forces a T/C to require its trial attys to produce proof of value (or debt am't) which isn't always easy to do. This also raises the issue of who has the burden to produce such value proof and what does the T/C do when such proof is lacking. See Forgason (911/893). A hint to the wise atty, make sure your inventory (with current values and debt am'ts) are introduced or at least on file ala Vanderson (857/659). A hint to the T/C, if values or debt am'ts aren't introduced or on file, just abate or continue the trial until property value proof (or debt am't) is produced as suggested in my 6/3/98 analysis of Albrecht (974/262).

2. Reynolds v. Reynolds, No. 01-98-01011-CV, not yet published (CA, Houston-1st). H & W separated in '93 and H moved to Colo. where he lived for 2 yrs and then moved to VT where he lives today. 3 years after H left Tex., W filed for divorce requesting a division of the parties' community property. H filed a special appearance claiming that his property (especially his pension) wasn't subject to division as he wasn't a Tex. resident. T/C denied H's special appearance, granted the divorce and divided the property. H appeals the special appearance denial. The CA affirmed holding that the general rule over non-residents is that due process requires that: (1) H have minimum contact with Tex. and (2) suit in Tex. doesn't offend traditional notions of fair play and justice. As to "fair play," maintaining the suit in Tex. wasn't excessively burdensome or inconvenient to H; Tex. used to be the marital domicile; W still lived in Tex. and Tex. has an interest in providing for her support. As to "minimum contact," after H left up to 1995, he continued to pay the mortg. on the Tex. home, paid for car ins. on W's car in Tex. and received "some" mail at his old Tex. home thus H had "minimum contact" with Tex.

Comment - Instead of using the legalese term "minimum contact," the CA should have used the Texas equivalent test of juris. over a non-resident, i.e. does the party have "just a tad" of contact with Texas.

3. In re: Levingston, No. 14-99-00506-CV, not yet published (CA, Houston-14th). H was held in contempt for failure to pay $48,000 in c/s. The T/C sentenced H to 3 consecutive 90 day periods for failure to pay the 1st 3 c/s installments due in '99 (punitive) plus a coercive sentence for H to remain in jail after serving 290 days until he pays W $48,000 plus atty fees and costs or the flesh rots from his bones (the more likely event). Additionally W obtained a $48,000 monetary judgment against H. All of this was reflected on a pre-printed contempt order form used by the Ct. Unfortunately the T/C forgot to advise H of his right to a jury trial and when filling out the form order the T/C forgot to complete the blank spaces showing the Vol. & page of the Ct. minutes where the c/s order was located. H/C granted. Failure to advise of H's jury rights negates the criminal contempt. The civil contempt is void as the T/C didn't comply with § 157.166 by (1) set forth the provisions of the c/s order sought to be enforced or (2) attaching a copy of such c/s order; or (3) giving the Vol. & page of the Ct.'s minutes where the c/s order is located. There are add'l requirements under § 157.166 but they weren't addressed in this opinion.

Comment - This is not an earth shaking opinion since this has happened before but is a reminder to bench & bar that if you're going to put someone in jail, dot your Is and cross your Ts.

4. In the Interest of De La Pena, No. 08-98-00211-CV, not yet published (CA, El Paso). H & W had 2 kids during their marriage. Unfortunately W was a drug addict and H was in jail so the 2 kids were left with various family members. The girl child wound up with her gay Texas aunt. When H got out of jail he straightened up his act and attempted to regain possession of his daughter from his sister after the child had been with her for only 9 mos. The aunt made several excuses to delay H's pick up of the child admitting that she caused the delay so she could satisfy the one year possession rule of § 153.373 thus rebutting H's presumptive right to be M/C of his child (§ 153.131). Shortly after one year passed, the gay aunt filed for sole M/C of the child in her possession. H contested. T/C made H & the child's aunt JMC with H having the right to determine primary residence. The aunt appealed. In another well written Justice Ann McClure opinion, the T/C was affirmed holding:

1. When a custodial party delays the return of a child to a parent (who initially voluntarily gave up custody) for the purposes of keeping the child for one year, the parent's voluntary relinquishment ends when the parent first attempts to regain possession, i.e. before the expiration of one year.

2. The aunt had the burden under § 153.131 to rebut the presumption that a parent should be a M/C of his/her child, i.e. the non-parent must show that such appointment would significantly impair the child's physical or mental development. Here the aunt didn't rebut the presumption.

3. Most significant - Between a non-parent and a parent, if the parent is a JMC, the parent shall be granted the right to determine the domicile/primary residence of the child unless doing so would significantly impair the child's physical or emotional development.

Comment - The pronouncement in c. is one of first impression although it's logical.

THE JULY QUIZ:

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.

ANSWERS TO LAST MONTH'S QUIZ.

1st Question Answer - The 1st thing you have to do is compute the "net enhanced value" of the house. This term is not defined in § 3.402 but it is the FMV at divorce ($140,000) less the FMV at marriage ($120,000) = $20,000.00. The 2nd thing is to compute the percentage to be multiplied against the $20,000 which is:

ANSWER: The community's equitable interest is $8,000. ($20,000 x $10,000 ¸ $25,000 (40%) = $8,000)

2nd Question Answer - The community's equitable interest is -0-. The FMV at divorce ($120,000) less the FMV at marriage ($120,000) = 0. There is no "net enhanced value" so the community money used to reduce the principal balance on the separate debt ($10,000) is just lost.

Comments - § 3.402 applies to real and personal property (stocks, furniture, etc.) but the debt has to be secured by lien or security interest on the separate property. What if H borrowed $90,000 from his Dad to buy Black Acre and signed a note but it wasn't secured by a D of T? Does the community lose everything or do we revert back to a case law equitable reimbursement claim where community $ is used to pay a sep. unsecured debt? Is an implied purchase money lien sufficient to satisfy the lien requiement of § 3.402? As to the 2nd Question, under the old reimbursement case law, the community would have an equitable reimbursement claim for $10,000 but not with the passage of § 3.402. § 3.402 assumes an ever increasing market value which is o.k. but if there's a down turn in market values, the community suffers. Does § 3.402 erase the old case law reimbursement claims where community funds are used to pay a separate secured debt? Probably so per Bartley v. Guilot (990/481). The real estate appraisers are going to love § 3.402 because it's a full employment act for them as virtually everything now depends on the FMV of the property at time of marriage and at time of divorce as I doubt that the sep. prop. spouse is going to stipulate to values. Obviously the spouse making the claim has the burden to prove all of this. I won't even mention the effect of Daubert (509 U.S. 579) and Gammill (972/713) on qualifying an appraiser as an expert. No wonder Texas leads the nation in the cost to obtain a divorce.