1. , 20 S.W.3d 250 (CA, Texarkana).
H & W were divorced in April '89 in a bench trial. The T/C awarded W "all rights, matured or
unmatured, vested or otherwise, relating to any retirement, pension, etc.
plan as a result of her past, present or future employment" (i.e. the
rather long pension award we all use in our decrees). Later it was
discovered that W was a member of a class action suit against her employer
regarding all employees' pension plans. This was not mentioned at trial. A
year later the suit settled and W received $50,000.00 plus an additional
$50,000.00 to be paid in the future. H then filed suit claiming these
monies were undivided in the divorce (i.e. a partition suit). T/C agreed
with H and awarded him 50% of what W received in the class action
settlement. W appeals.
CA reversed denying H any relief. W argued that the
class action related to her "retirement rights" which were awarded to her.
CA found that since this was a bench trial, the judgment was to be
construed by the rules relating to judgment construction. The decree
language was not ambiguous. But H argued that the T/C never knew of the
class action suit even if it related to retirement thus the T/C never
considered it when it awarded W "all retirement rights". The CA ruled that
the decree language was broad enough for the T/C to have "considered" the
property (the class action suit) even though it was not aware of the suit.
Comment - Here's a case that stands for the proposition that a T/C can
validly award property to one spouse or the other without even knowing
that such property exists.
2. Anastasoff v. U.S.A., No. 99-3917EM, not yet published (8th Circ.).
This is a suit over the claimed refund of taxes paid by an individual. The
tax payer's position in this case was exactly the same as an unsuccessful
tax payer in a previous appeal but the opinion in that appeal was an
unpublished opinion thus the tax payer said the IRS couldn't rely on it in
this appeal.
The 8th Circ. held that the unpublished opinion was binding
precedent and shocked the judiciary by holding that the portion of the
Federal Appellate Rules whereby an appellate court may declare an opinion
shall not be published (and thus no precedent for anything) is
unconstitutional under Art. III of the U.S. Constitution.
Comment - Although this isn't a Texas case, it's interesting that one federal
appellate court has now ruled that all federal appellate opinions,
published or unpublished, have binding precedent in subsequent cases. Will
this happen in Texas? Probably not.
