Houston Bar Association - Family Law Section

Gray's Interesting Cases - September/October 2004

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  1. Gold v. Gold, No. 47 Tex. Sup. Ct. J 47A. X-W filed suit against X-H for an accounting arising from X-H's alleged fraudulent transfers in violation of the terms of the AID in their divorce. The case was DWOPed w/o X-W's knowledge. When X-W finally learned of the dismissal, she filed a B of R within 6 mos. of the dismissal. The T/C dismissed the B of R stating that X-W was negligent in not filing a restricted appeal within 6 mos. of the judgment thus she couldn't prevail on the B of R due to her own negligence.

    The Supremes reversed saying that X-W's decision to attack the dismissal by B of R rather than a restricted appeal was not negligence as under a restricted appeal she would have to show error on the face of the record which is impossible in a DWOP case.

    Comment - The most interesting part of this opinion is the Supreme's dicta by which they state that in a B of R action, "If a motion to reinstate, motion for new trial, or direct appeal is available, it is hard to imagine any case in which failure to pursue one of them would not be negligence." Something to remember if you are defending against a B of R.

  2. In re: The Prudential Insurance Co. of America, et al, 47 Sup. Ct. J. 47A. This is not a family law case but it certainly applies to family law. P and D signed a lease regarding a business space. The lease provided that if P filed suit against D for any rent or other monies due under the terms of the lease, D would: (a) not file any counter-claims to such enforcement action and (b) waive trial by jury. D later filed suit against P basically to cancel the lease and P counter-filed for unpaid rent. D properly demanded a jury. P filed a motion to quash the jury request per the contractual agreement. The T/C denied the motion to quash stating that contractual jury waivers are against Texas public policy.

    The Supremes reversed in a 5 to 4 decision holding that a contractual jury waiver is permissible under Texas law provided such is done voluntarily, knowingly, and with full awareness of the legal consequences. This is no different than people contractually agreeing to arbitrate a dispute rather than resorting to a law suit.

    Comment - WOW! Imagine what you can do with this in your AIDs including future SAPCR modifications or future suits on alleged breaches of the AID. I wish the Supremes had addressed the contractual agreement not to file a counterclaim but that's a future opinion.

  3. In the Interest of A.C.J., No.09-03-501-CV, not yet published (CA, Bmt.). H & W divorced in '93 with H paying c/s to W together with the obligation to pay 50% of the uninsured medical expenses. In '03 W filed a motion to enforce claiming that H hadn't paid his share of the medical expenses. W also requested that H be enjoined from foreclosing an owelty lien granted to him to secure W's obligation to pay the mortgage on the parties' home which was awarded to W in the divorce (actually W signed a d of t to secure assumption and the Bmt. CA doesn't know the difference between that and an owelty lien). Lastly W sought sanctions in the form of atty fees for defending against H's frivolously filing a motion to reduce c/s in 2002 which was later non-suited. The T/C held H in contempt for failure to pay his portion of the medical expenses, awarded W atty fees for the enforcement action plus atty fees for the prior "frivolous" action and declared the assumption d of t void. The CA refused to pass on the contempt action as you can't appeal a contempt sentence (H/C being your only relief) but they affirmed the remainder of the judgment. In respect to the atty fee sanction, the CA cited &set;156.005 which states that, "If the court finds that a suit for modification is filed frivolously...the court shall tax atty fees as costs against the offending party." §156.005 doesn't define "frivolous" and this T/C didn't set out H's actions/pleadings which were "frivolous." The CA found that unlike TRCP 13 or 215 or Chapter 9 & 10, Tex. Civ. Prac. & Rem. Code, under §156.005 there is no requirement to give the specifics underlining the "frivolous" finding thus the T/C didn't abuse its discretion in sanctioning H for his "frivolous" filing in 2002.

    Comment - Huh? I know that if you non-suit your action under TRCP 162, it doesn't defeat the other party's request for sanctions or atty fees pending at the time of such dismissal but to bring up this issue in a subsequent suit seems to be stretching the point. Even tho W had requested atty fees in the earlier action, allowing a T/C in a subsequent action to assess atty fees incurred in the earlier action (especially without detailing the grounds/facts underlining that award) seems somewhat far fetched. Be that as it may, you can use this case to have some fun.

  4. In re Bielefeld, No. 2-03-280-CV, not yet published (CA, Ft. Worth). W filed for divorce and requested temp. orders pending trial which the T/C granted regarding child custody, use of home, etc. Later W filed another motion for interim atty fees which the T/C granted by ordering H to pay W's atty $50,000 as interim atty fees. H didn't pay so W filed for contempt. H was held in contempt and for the first time the commitment/contempt order stated that the $50,000 interim atty fees was "additional spousal support."

    H's H/C was granted. The original temp. order did not characterize the $50,000 as "additionl spousal support" thus H was imprisoned for non-payment of a debt. The T/C's attempted bootstrapping in the contempt order and what he might have said on the record can't be recognized since it was not in the order sought to be enforced.

    Comment - You would think that any atty or judge who has been in practice for more than 6 mos. would know about the 1995 case of Kimsey (915/523/2) but I guess I live in an ivory tower. If I'm awarded $50,000 as an interim atty fee, I'm durn well going to make it as "additional spousal support." If a T/C won't agree to this, then he/she shouldn't award it in the first place. For 50 G's I'm crossing t's and dotting i's.

  5. Kent v. Holmes, 139 S.W. 3d 120 (Tex. App. Texarkana, 2004, no writ.). W retired from teaching and was receiving her pension from TRS. H was designated as her beneficiary under that part of the TRS plan which provides that upon W's death, H continues to receive W's pension during his lifetime. H & W divorced in '99 with a decree that said that W was awarded all of the rights, etc. under the TRS plans and H was divested of all rights under the TRS plan. H was ordered to sign all papers necessary to effectuate the decree to TRS. TRS promptly wrote back & said that the decree did not specifically remove H as the survivor bene. under the plan so TRS wouldn't recognize the decree. To remove H as a bene., the decree has to specifically remove H as the bene. or H has to sign a TRS approved form removing him. Nothing further was done until W died in 2002. W's survivors sued H for the TRS pensions payments he started receiving. T/C granted s/j to H.

    CA reversed. Despite what the bureaucrats at TRS say, this decree did remove H as the survivor bene; however, since W did nothing to remove H as the bene. in 2000 after she received notice from TRS that they wouldn't recognize the divorce decree, a fact question exists that maybe W wanted H to remain as a bene. hence the case is remanded for additional trial.

    Comment - If you are representing a teacher, be sure to remove the other spouse as a bene. under the TRS plan & order the non-teacher to sign and deliver the appropriate forms confirming such removal.

  6. Kilroy v. Kilroy, 137 S.W.3d 780 (Tex. App. Houston, 2004, no writ). In '03 H & W divorced per a mediated settlement which contained an agreement that any subsequent dispute regarding the parties' child would be submitted to binding arbitration rather than trial to a Texas court. 7 mos. later H filed suit to terminate W's visitation rights, etc. Before arbitration could be completed, H's mother (GM) intervened requesting custody of the parties' child. GM also requested the T/C to order the arbitration abated until it could be determined if GM had standing to sue for custody. The T/C granted the abatement. H files for mandamus to set aside the abatement order.

    Granted. Although the decree's arbitration provisions provide for arbitration both under the Texas General Arbitration Act (TGAA) and under §153.0071 F/C, the T/C has no authority to abate arbitration even when a 3rd party (not a party to the arbitration agreement) intervenes in the SAPCR action. By the way, in a SAPCR action if there is a conflict between the TGAA and the F/C arbitration statutes, the F/C prevails.

  7. In re Daniels, 138 S.W.3d 31 (Tex. App. San Antonio, 2004, no writ). In 2002 Atty D agreed to represent H in a divorce case involving child custody. There was a written contract outlining the atty fees to be paid by H. A few days after a mistrial was declared in January 2004, Atty D filed a motion to w/draw which the T/C denied promptly denied (maybe because the case was set for trial in March - later reset to May). Atty D filed a 2nd motion to w/draw which was heard on March 1st. This motion was also denied even tho Atty D proved that (1) H hadn't paid his atty fees for some time; (2) H would not accept Atty D's correspondence; (3) H had moved and wouldn't give Atty D his new address; (4) H wouldn't return Atty D's telephone calls; and (5) H's mother's actions were substantially interfering with Atty D's ability to represent H properly.

    Atty D filed mandamus which was granted. Disciplinary Rule 1.15(b) specifies instances where an atty may seek to w/draw from a case including non-payment of fees. Under the facts of this case, Atty D showed good cause to w/draw from this case and the T/C erred in denying the motion to w/draw.

    Comment - I wonder how much time the trial judge spent in private practice before assuming the bench? Not only is the atty. going broke representing H, the T/C is setting up the atty. for a malpractice suit. Where's the love?

  8. Shackelford v. Shackelford, No. 11-03-00119-CV, will not be published - memo opinion (CA, Eastland). H & W divorced. Out of a community estate worth $94,865, the T/C awarded W $56,337 and H got $38,528 but H was ordered to pay W's atty $35,000 so he netted $3,538. H appealed the property division.

    Affirmed. If you ignore the $35,000 in atty fees H has to pay (no mention was made of what H had to pay to his atty), H got $38,538 or 39% of the community estate so roughly a 60/40 division isn't an abuse of discretion.

    Comment - Gee maybe in Eastland (wherever that is), there's a different kind of math. I always thought you used net figures (gross value less debts) to determine a net property division. The real net estate was $59,865 ($94,865 less $35,000) so H got 6% of the net estate. Using gross values and ignoring liabilities to determine the division percentage is just plain silly. Apparently H was a bad actor and didn't deserve more than 6%. Why didn't the Eastland CA just say that rather than bastardizing simple mathematics to justify the T/C's division? I wouldn't rely real heavy on this case to justify a percentage division of a community estate.