Houston Bar Association - Family Law Section

Gray's Interesting Cases - September 2003

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  1. In re Walkup and Newton, No. 01-03-00131-CV, not yet published (CA, Houston - 1st). Your client is served with a TRO issued at 11:00 a.m. on Jan. 30th which prevents him from w/drawing any $ to pay your normal outrageous retainer but the temp. hearing isn=t set until Feb. 14th. On Feb. 13th at 1:00 p.m. you instruct your client to w/draw the $ and pay you because the TRO expired 14 days after it was issued. Have you screwed up? Yep. A TRO is good for 14 calendar days (expiring at midnight on the 14th day) not 14 24-hour days (which would dissolve the TRO at 11:00 a.m. on Feb. 13th).

  2. When will they ever learn? Sandone v. Sandone, No. 08-22-00433-CV, not yet published (CA, El Paso). W filed for divorce (no kids) & had H served but he failed to file an answer. 80 days after service W appeared to obtain a default divorce in which the T/C, after 4 pages of testimony, awarded each spouse their property in possession, confirmed W's sep. prop. consisting of real estate, etc. (even tho she didn't plead sep. prop. in her petition), and awarded W a $50,000 owelty judgment against H. H appeals.

    Reversed. The T/C commits reversible error by dividing the parties' property w/o any testimony regarding the value of the parties' assets and the am't of their debts. In this case there was no evidence to the support the T/C's property division.

    Comment - This isn't new law -- its been around for at least 16 years so you'd think the T/C and/or W's atty would know it. If you have a default situation, prepare & introduce an inventory and have your client testify as to asset value and am't of debts. I know the T/C's don't want to take their most valuable time listening to this on a default but if you don't, all can be for naught. You don't want to listen to your client's screams or try to explain your actions to the grievance board.

  3. In the Interest of A.J.K. No. 14-02-00397-CV, not yet published (CA, Houston-14th). CPS filed suit to terminate the parental rights of the parents of A.J.K. per subchapter 263. Both sets of grandparents intervened requesting custody and a jury trial ensued. The maternal g.p.'s won custody afer CPS dropped its termination suit so the paternal g.p.'s appealed after timely filing a MNT and perfecting their appeal 58 days after the judgment was signed.

    Appeal dismissed. Since CPS originally sought termination of parental rights, even tho CPS dropped its termination request, §263.405 makes this suit (and its appeal) an accelerated process thus the filing a MNT does not extend the time to perfect your appeal. TRAP 26.1 (b) provides that in an accelerated appeal, the notice of appeal must be filed 20 days after the judgment is signed. As the appealing g.p.'s filed late (58 days which was o.k. for ordinary appeal), their appeal is dismissed.

    Comment -- Watch out folks -- there's a lot of minefields out there.

  4. Rose v. Rose, No. 10-01-215-CV, not yet published (CA, Waco). H&W were divorced in '99 with H having the right to determine the residence of the parties' older child and W having a similar right for the younger child. Each parent had visitation rights with the child in the primary custody of the other. Later H moved to England and took "his" child with him thus denying W her visitation rights. W filed a motion to modify plus a suit for damages for H interfering with her visitation with the older child. After everything is said and done, W became the sole M/C of both kids and the T/C awarded W a $15,550 judgment against H for visitation interference.

    H appeals & CA affirms.

    Comment -- This case isn't really significant except to highlight the existence of a monetary damage suit for denying court ordered visitation. Something to think about when you are filing contempt for visitation denial.

  5. In the Matter of the Marriage of Smith, No. 06-02-00133, not yet published (CA, Texarkana). H&W married in '53 and separated in '82 when they signed a partition agreement which purported to divide all of their community property. There was a general clause that awarded to each spouse all property now held by each plus any property which may hereafter "belong or come to belong" to him or her. In '85 H started receiving a pension under an employment program not specifically mentioned in the partition agreement. In 2001 (why after 19 years?), W filed for divorce requesting a portion of H's pension. H claimed he was awarded all rights under this pension under the residuary clause of the partition agreement. T/C disagreed and awarded W a part of the pension. H appeals.

    Reversed. The CA found that the residuary clause was sufficiently clear to cover H's pension. The important part was that W apparently argued that the partition agreement was "unconscionable" under §4.105(b) thus the partition should not be enforced. The CA has a great discussion of what "unconscionable" means ultimately finding that there is no precise legal definitions. However, W waited 20 years to scream "unfair" after taking the benefits under the K for that length of time. Even if the K was "unfair", she had competent attys advising her and the cts. won't protect someone who voluntarily and knowingly enters into a hard (one-sided) bargain. W argued that H's pension rights are very valuable 20 years later to which the CA responded by saying, "we look at the values/circumstances at the time of the signing of the K" not 20 years later.

    Comment -- Good case if you're defending a pre-nup. or a partition agreement.

  6. Cottone v. Cottone, No. 01-02-00746-CV, not yet published (CA, Houston-1st). W filed for divorce. Although H filed an answer he didn't show up for trial so the T/C divorced the parties and awarded W 50% of a p.i. settlement due H for injuries sustained by H. H then filed a MNT but withdrew it. He then filed a bill of review which was denied with no appeal filed. When H refused to pay W 50% of the p.i. award, W filed for contempt/enforcement of the divorce decree. H defended on the basis that as the p.i. award was his sep. prop., the T/C had no juris. over his sep. prop. thus the T/C's award to W was void and unenforceable.

    The CA affirmed the T/C=s enforcement order. Working on the assumption that the p.i. award was H's sep. prop., and recognizing that there is some case law holding that a divorce ct. has no juris. over a spouse's sep. prop., the CA held that H's defense was a collateral attack on what might be a voidable, but not void, judgment citing Reiss, 46 Tex. Sup. Ct. J. 844 which held that if a T/C totally screws up and awards a spouse a part of the other spouse's sep. prop. but there is no appeal, the judgment is not void and the judgment is not subject to collateral attack.

    Comment -- Dumb does as dumb is. Why on earth would H dismiss his MNT?

  7. In re Ostrofsky, No. 14-03-00687-CV, not yet published (CA, Houston-14th). H&W divorced in 2002 with W having the right to determine the kids' primary residence and their educational decisions. Shortly thereafter H&W starting fighting about the kids to the extent each parent filed for protective orders and motions to modify custody/visitation. After a 3 day hearing where everyone is yelling about the conduct of the other and the T/C interviewing the kids, the T/C entered a temporary order whereby the kids were to live in a boarding school away from both parents until everyone is fully shrunk as "it is not in the best interest of the kids to live with either parent."

    W files mandamus which is granted. By ordering the kids to boarding school "until further order of the ct," the T/C basically changed W's right to determine the kids' primary residence which the T/C can't do under §156.006 unless there is a finding that the kids' present living environment may endanger the kids' health or significantly impair the kids' emotional development. There was no such finding which was supported by the evidence.

    Comment -- As our T/C's have such wide discretion in SAPCR matters, they forget there are some limits on their powers. This is an example of going beyond those limits.

  8. In the Interest of C.P.J.and S.B.J., No. 05-02-01639-CV, not yet published (CA, Dallas). In '99 H entered into an agreed order with his deceased W's parents whereby the g.p.'s had visitation rights with their grandkids. In 2000, H filed a motion to modify claiming a change of circumstance as a result of the big Supreme's opinion in Troxel (530 U.S. 57) thus the g.p.'s visitation rights should terminate. After trial the T/C reduced the g.p.'s visitation rights somewhat but did not terminate them. H appealed claiming that since the g.p.'s neither plead or proved he was "unfit" allowing the g.p.'s to have any visitation with his kids infringes upon his parental liberty interests in violation of Troxel.

    CA affirms. The CA found that Troxel doesn't make Texas' grandparent visitation statute facially unconstitutional. Additionally, the T/C did accord "some special weight to the parent's determination" as required by Troxel when it reduced the g.p.'s time with the kids even tho it didn't terminate those rights as requested by H. Unfortunately the Dallas CA found that El Paso's decision in Roby (68/822) which would require a finding of parental unfitness didn't apply in this case.

    Comment -- I know the CA's around Texas are stretching all they can to uphold §153.433 but if you are representing the g.p.'s you better have an unfitness finding or you are in trouble per Roby. Additionally, I can't understand why the appealing party who is fighting g.p.'s possession doesn't appeal on the basis of access only, not possession, when §153.433 only gives g.p.'s "access" (not possession) as highlighted and confirmed in E.C. Jr. & S.C. v. Grayson (28/825).