 Gray's Interesting Cases - November 2002
 
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- In re: Calderon, No. 12-02-00228-CV, not yet published (CA, Tyler). H&W divorced in S County in '93. In '98 W and the kids moved to B County where she and the kids continue to reside. In 2000 there was some post-divorce SAPCR litigation going on between H & W in S County which was settled by a MSA which also provided that S County would retain juris. & venue over the parties and kids for 3 years even tho W and the kids have lived in B County for more than 6 mos. The MSA was approved by the T/C by order which specifically ordered that juris/venue would be retained for 3 years. 2 yrs. later W filed a motion to modify together with a motion to transfer to B County which the T/C denied since the 3 yr agreed and ordered juris/venue period had not run. W files mandamus. The key issue was, "Does the mandatory transfer rule of §155.201(b) override the 3 yr venue/juris MSA agreement?" or "Can the parties make a binding agreement as to SAPCR venue/juris issues per a §153.0071 irrevocable MSA which contravenes the mandatory transfer rule?" The CA granted the mandamus holding that, except where a statute permits, the parties can not by private agreement fix venue/jurisdiction in contravention of a statute, Fidelity Union Life Ins. Co. v. Evans, (477/535) and Leonard v. Paxson, (654/440). Such an agreement is void. Another interesting statement is that the §153.0071 phrase whereby a party is entitled to judgment on a MSA "not withstanding Rule 11 or another rule of law" means Rule 11, Chapter 154, Tex. Civ. Prac. And Rem. Code and general contract law.
Comment Probably a correct ruling; however, if H gave up some valuable right to secure the 3 yr juris/venue agreement, it doesn't seem quite fair. However, I guess it's like contracting with a minor -- you do it at your own risk.
In re Lau, No. 01-02-00889-CV, not yet published (CA, Houston - 1st). H, who was entitled to the possession of his child, filed a habeas corpus to regain custody of his child when W refused to return the child after her summer visitation. The T/C (a visiting judge) denied W's writ and found that there was a "serious and immediate question" concerning the child's welfare so he entered temp. orders whereby W retained the kid's custody until further order. Unfortunately the written order did not contain a finding of "serious and immediate." H files mandamus which was granted because the granting of a H/C under these circumstances is automatic unless there is a written finding of "serious and immediate question" M.J.R. v. Vick, (753/526) of these is no written finding, the H/C must be granted.
Comment - When I learned what the trial judge did and he was a visiting judge, I thought "Wells Stewart is alive and well" but it was another judge who is ignorant of the H/C rules which have been in effect for 20 or 30 years. - In re Nesevitch, No. 14-02-00770-CV, not yet published (CA, Houston- 14th ). W filed contempt for H's failure to pay c/s per their '94 divorce. The T/C found H in contempt and sentenced him to 10 days in jail and there to remain until he pays W $7,800. The contempt order finds that H failed to pay the c/s in the am'ts on the dates shown on attached Ex A. Exhibit A was a printout from the c/s division showing the am'ts and dates that H did pay c/s. H/C granted. §157.166 requires that the contempt order show the acts or omission that are the subject of the order and the manner of noncompliance. Here Ex A only showed what H paid, not the payments he failed to pay.
Comment - You have to dot the i and cross the t on contempt, or you are just wasting your time. What if the contempt order found that H had failed to pay $_______ on the 1st and 15th of each month from ________ to ________ except for those payments made in the amounts and on the dates shown in Ex A? Would this satisfy §157.166? Probably.
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