Comment If you're defending against one of these old c/s collection cases, plead as a defense §31.006 and 34.001 plus the Leg's violation of its "remedial boundaries" so the Supremes can grant review and decide this issue.

CA reversed holding that M wasn't a donee bene. nor was she a creditor bene. as the original p/n was barred by the S of L and the AID wasn't an acknowledgment of the debt thus relieving the debt.

The Supremes reversed holding that the AID was a sufficient debt acknowledgment under §16.065 Tex. Civ. Prat. & Rem. Code thus H still owed M the unpaid balance of the p/n.

The Supremes granted the mandamus and disqualified Judge B (to which I say so what - the Supremes said Judge B had "entered" judgment so all that is left is for W to appeal - could it be that the Supremes meant "rendered" instead of "entered"? - there's a big difference). The Supremes held that altho the divorce and the modification are "distinct statutory schemes that involve different issues per V.L.K. (24/343) they are the same for judicial disqualification when kids are involved, i.e. a SAPCR action. TRCP 18b disqualifies Judge B as his previous partner (Atty A) represented W "in the matter in controversy".

Comment - Initially I thought this might cause a lot of problems but it has been my experience that most family judges were solo's before assuming the bench. If you have a judge who came from a partnership (large or small) and that judge's partner represented a party in a SAPCR, that judge is disqualified from presiding over a subsequent SAPCR action between the parties.

TDPRS appealed to the Supremes and they reversed finding that in a termination case, factual sufficiency is judged by the standard of "clear and convincing" which is a lesser standard than "highly probable".

Comment - Thank God this issue has been resolved as it has been a constant concern in the trailer parks of East Texas.

Comment - Altho I think protective orders should be appealable as they can have such a potential damaging effect and our T/C's seem to issue them willy nilly without really applying the law to the facts or vice-a-versa, it sure would be nice for the Supremes to resolve the irreconcilable conflict between our CA's. Will they do so? Remember this is a family law matter which the Supremes are loathed to discuss unless it involves such intellectual issues as standards of review or judicial disqualification.

Affirmed. The T/C didn't abuse its discretion as W's paternity denial was untimely. If she wanted to contest this issue, she should have raised the issue by pleading prior to rendition.

Comment - Good law. To do otherwise allows W to shoot holes in the MSA which shouldn't happen.

Comment - What always amazes me is that there is a Sup. Ct. case directly on this point, Tippy v. Walker, 865/928, so how on earth did the T/C deny the transfer? Either W's atty wasn't aware of Tippy or the T/C wasn't aware or choose not to comply with Tippy. Inexcusable in any case.

CA dismissed without deciding because the declaratory judgment act can only apply where there is a justiciable issue between the parties over which the T/C has juris. Is there such an issue here? Nope. Both H & W live in VA. They couldn't file for divorce here in Texas as neither has satisfied the residency or domicile requirements of the F/C and neither has filed for divorce in Tex (or anywhere else for that matter). Since there is no justiciable issue (divorce) over which the Tex. T/C has or could have juris., it has no juris. under the declaratory judgment act.

CA reversed. In a suit to reduce accrued c/s to judgment, the obligor is entitled to certain credits such as providing actual support to the child (§157.008) but no where in the F/C is an obligor entitled to credit for a social security disability payment paid to or for a child. Since nothing in the F/C authorizes this, the T/C can't grant H a credit or offset. The 14th CA recognizes that the San Antonio & Texarkana CA's have authorized such credits (Allsup, 926/323 and Rich, 993/272) but they refused to follow such opinions. They even recognize that §154.132 authorized such a disability credit when setting c/s but held that this doesn't apply when a T/C renders judgment on unpaid c/s.

Comment - According to this case, if W is receiving a dependent disability payment as a result of H's disability, H still owes the full am't of c/s thus W gets paid twice. This ain't right. If it is right, then the F/C should be changed to allow this credit. The 14th could have reached the same result without destroying the disability credit by merely distinguishing Allsup and Rich where the wife got the payment for the child's benefit during the child's minority whereas here the payment was made to the oldest son, not to the wife.

CA reversed finding that everyone was wrong. The buy/sell agreement formula doesn't come into effect because the agreement says it is only applicable if H divorces and H does not receive the community's share of the P.A. which he did in this case. W's expert's use of "enterprise value" is wrong in the context of valuing a minority shareholder's stock which is subject to a buy/sell restriction which does impact on the stock value. As there was no evidence as to the "fair mkt" or "mkt" value of the stock, case reversed and remand for add'l evidence.

Comment - When I first read this case I thought it was significant but not I'm not so sure except to say "enterprise value" isn't a substitute for "fair market value".

CA affirmed except it reversed as to the denial of W's request for a wage withholding order regarding the younger child's c/s and held:

1. There is no such thing as "equitable c/s" so H wasn't entitled to this credit; however, this wasn't reversible error as H had add'l credits which exceeded W's c/s claim.
2. Yes the T/C miscalculated the accrued c/s due W by $1,100 but this wasn't reversible error because H's credits still exceeded the accrued c/s due W.
3. W claimed error because the T/C didn't render judgment on her enforcement motion which was heard on 12/17/98 as §157.061 says the T/C shall give preference to her enforcement motion and may not delay the hearing because a motion to modify c/s is pending. The CA overruled this because the T/C found that there were insufficient facts before the ct. by which the ct. could determine the am't of accrued c/s due W, i.e. H was entitled to credits or offsets which would reduce the accrued c/s owing by him. Under these circumstances delaying a ruling on W's motion was discretionary with the T/C not withstanding the apparent mandatory language of §157.061. The T/C did not abuse its discretion.
4. When the T/C set W's retroactive c/s for the older child ($6,900), the T/C did not err in offsetting this am't against the accrued c/s owing to W; however if this was error it was harmless as H's $20,300 offset (medical expenses - $6,600 and the older child's living expenses - $13,700) more than offset W's claim of $17,100 in accrued c/s.
5. Even though H's offsets (medical, actual support & retroactive c/s) only related to the older child, since the '97 c/s order didn't apportion the c/s between the 2 kids, H was entitled to offset against the c/s obligation for both kids.
6. Even tho §157.167 says that if the c/s obligor has failed to pay c/s, the T/C shall order the obligor to pay the obligee's atty fees, the T/C still has the discretion to deny such atty fees if there is no judgment in the obligee's favor for accrued c/s.

Comment - This is a big case on c/s enforcement where the obligor has possession of a child & supports that child. I represented an obligee in a similar case and argued to the T/C that it shouldn't rule on the am't of accrued c/s until after ruling on my motion to modify c/s & request for retroactive c/s. The T/C denied my request because of the apparent mandatory language of §157.061. Thankfully, that judge is no longer on the bench. The issue of non-apportionment of c/s is also significant. If you have 2 or more kids, your c/s order usually has a reduction as each child becomes 18, etc; however, even tho there's a reduction, this doesn't mean the difference between the original am't and the reduced am't apportions the original am't between the children covered by the original order. All in all, this is a great case and gives the T/C's some leeway on c/s enforcement where the obligor winds up rearing one or more of the kids.

Affirmed.

1. A's aff. of relinquishment does not become involuntary because the T/C does not abide by A's wishes that the child be relinquished to the person(s) designated by A in her aff.
2. Altho §162.302(c) says "whenever possible siblings should be placed in the same adoptive home," this does not create the burden to prove "clear and compelling reasons" why the child should not be placed in the same adoptive home. The burden is simply what is in the child's best interest.
3. The case law which requires "clear and compelling reasons" to justify the split custody of siblings arises from divorce custody suits and is not applicable to adoption cases especially when the siblings have different fathers and they have never lived together in the same household.