1. In re: Castor, No. 01-99-00859-CV, not yet published (CA, Houston-1st). H & W divorced
in ‘94 and H was ordered to pay c/s which he didn't do. In Jan. ‘97 a contempt hearing was held
where H appeared without an atty. The T/C advised H of his right to an atty which H waived. H was
found guilty of contempt & sentenced to 30 days but commitment was suspended provided he paid
the arrearage over a period of time plus he paid the future c/s timely (under the new § 157.165 &
157.211 this is called being placed on community supervision). In Jan. ‘98 W filed a motion to
revoke probation as H had defaulted in payment. In July ‘99 hearing was had and once again H
showed up without an atty but this time the T/C didn't advise him of his right to an atty. The T/C
sent H to jail & he filed a H/C. Does the T/C have to advise an unrepresented person of his/her right
to an atty at each stage of a contempt proceeding before putting H in jail? Yes - any time a person
is facing incarceration the T/C must advise of the right to an atty or the commitment is void. H/C
granted.
Question? - What if the T/C failed to advise at the 1st hearing but did at the revocation
hearing? Probably o.k. as H didn't go to jail after the 1st hearing.
2. Hawkins v. Hawkins, No. 03-98-00321-CV, not yet published (CA, Austin). H & W married
in ‘81 & W filed for divorce in ‘92 and amended her petition in ‘ 93. At all times H was in the U.S.
Army. H never filed an answer so W obtained a default judgment in March ‘93 whereby H was
ordered to pay c/s for 3 kids & W got a part of H's military retirement. W didn't file an aff. showing
H's military status as required by 50 USCA § 520. In ‘96, H filed an application to set aside default
judgment per the Soldier's & Sailor's Civil Relief Act (50 USCA § 501-506) which the T/C denied.
On appeal, the CA said that W's failure to file the military status aff. standing alone didn't void the
decree; however, the decree was voidable if H showed that he was prejudiced by being in the military
in respect to presenting his defense provided he had a meritorious defense. After examining the facts
the CA found that H had a meritorious defense which he was prevented from presenting due to his
military service - reverse & remand.
Comment - This is not a highly significant case except as a
reminder that if you are filing a divorce and the Resp. is in the military, you better comply with the
SSCRA or everything can be set aside. The military guy can file his motion to set aside at any time
he's in the military and 30 days thereafter so the S of L can be as long as 10 to 20 years.
3. Rusk v. Rusk, No. 14-97-00983-CV, not yet published (CA, Houston-14th). 1st a disclaimer.
Roy W. Moore represented H in this trial and I argued all of the receivership law at the entry hearing
but the T/C chose not to consider my words with the following results.
In ‘84 H's father incorporated an auto service business which H ran as his own business. All of the
corp. stock was in H's father's name. H married W in ‘89. 39 days after the marriage, H's father
transferred all of the corp. stock to H for no consideration. W acknowledged that H paid nothing for
the stock. H & his father said the transfer was a gift to H. The stock cert. had a pre-printed transfer
form which said "For valuable consideration ________________ transfers to _____________ the stock
represented by this cert." This pre-printed form was completed & signed by H's dad & delivered to
H. The T/C found that the stock was community property. It was undisputed that H had several
pieces of separate real property and some (not all) had mortgages on them which were paid on after
marriage. The parties' community property was divisible in kind; however, in closing argument, W
asked the T/C to give H some of the community property she didn't want and award her a monetary
owelty judgment against H to offset the community property awarded to H. W, without any
pleadings on file, then asked the Ct. to place all of H's sep. property plus his shares in the parties'
community in the hands of a receiver to hold same until H paid the owelty judgment. The T/C did
what W asked by awarding W a $150,000 owelty and reimbursement judgment (approx. $80,000 was
reimbursement relating to some but not all of H's sep. property and $70,000 was given so W could
have a higher percentage of the parties' community property). Then the T/C appointed a receiver to
take charge of all of H's separate and community property "to insure that the $150,000 judgment
is paid."
The CA reversed & remanded holding:
- The stock is H's sep. property. Altho a T/C can question the credibility of H & his
father's testimony, it can't ignore the undisputed evidence and otherwise corroborated
proof. The fictionalized pre-printed statement "For value received," can't be the basis
for a finding of community property in light of the other facts of this case.
- There is no Texas law that authorizes a divorce T/C to place a party's sep. property
in a receivership - this is a taking of sep. property which is prohibited per Eggemeyer
(554/137).
- A T/C can place community property in a receivership to effectuate a divorce
property division but only if the property is not divisible in kind. (In this case the
community assets awarded to H were divisible in kind)
- Although it is not absolutely required, the better practice is that a receivership should
not be established for community property unless the property is shown to be in
danger of being lost, removed or destroyed.
- Rule 695, T.R.C.P., requires that notice of a receivership must be given before placing
land (community property) in a receivership. Here no notice was given until closing
argument and a post-argument hand written trial amendment was filed by W. If you
want a receivership, you have to plead for it prior to trial.
Comment - Although H won his appeal, it's somewhat of a pyrrhic victory as H's inability to
manage his business and sep. property as he wished during the appeal due to the erroneous
receivership lead to his bankruptcy which did not benefit him or his ex-wife. Also implicit in the
opinion, but not expressly stated, is the conclusion that although a divorce T/C has great discretion
in dividing the parties' community assets including owelty judgments, this discretion is not unlimited.
Just because a T/C dislikes one party and wants to help the other, you can't disregard the law (even
if you don't agree with it) to achieve what you believe to be an equitable result such as using a
receivership to force the payment of a monetary owelty and/or reimbursement judgment.
