HBA Family Law Section - Gray's Interesting Cases

Houston Bar Association - Family Law Section

Gray's Interesting Cases - November 2003

In re: Dupree, No. 05-03-01303-CV, not yet published (CA, Dallas). H&W divorced in '96 with an agreed decree which, in part, contained a section entitled "Contractual Alimony" by which H agreed to pay W $8,500/mo. as alimony. The parties agreed, in the decree, that this obligation was intended to qualify as contractual alimony. The decree further stated that this "alimony obligation is contractual in nature." Naturally H didn't pay so in Jan. 2002, W filed contempt for H's failure to pay $187,000 in alimony. Ultimately H was held in contempt and sent to jail until: (1) he pays the alimony or (2) the flesh rots from his bones. H filed for a H/C which was granted. W argued that this contractual alimony was enforceable by contempt because §8.509(a) says "The court may enforce by contempt...an agreement for the payment of maintenance voluntarily entered into between the parties and approved by the court." H argued that the alimony provisions of the decree were a part of a property retirement per §7.006(a) and not per §8.001 et seq. thus his agreement to pay W future installments can't be enforced by contempt because §9.012 specifically says so.

The CA agreed with H and he is freed as §8.509(a) which authorizes contempt enforcement of contractual alimony violates Art. I, Sec. 18 of the Tex. Const. (Imprisonment for debts). The CA also said that the decree in this case had no command language which also negated contempt enforcement.

Comment - Absolutely correct holding and kuddos to the Dallas CA. But why muddle up a perfectly well reasoned opinion by mentioning no command language? Does this mean if you have a clear contractual alimony agreement but have command language it is now enforceable by contempt? I don't think so as the alimony agreement is made per §7.006(a) not §8.001 et seq. notwithstanding the use of command language. If you have a contractual alimony agreement, never ever use command language. By the way who came up with the unconstitutional language of §8.509(a) attempting to enforce a contract by contempt? I see Jack Sampson lurking in the background.
In re Campton, No. 06-03-00122-CV, not yet published (CA, Texarkana). In Aug. '02, H filed for divorce in H County. A month later W filed for a protective order in S County which resulted in a protective order whereby W had the exclusive possession of the parties' child. H was enjoined from being near the child except for supervised visits. H appealed the protective order but his appeal was dismissed as Texarkana is one of appellate courts that holds that protective orders aren't appealable. H's divorce proceeding is set for trial in H County. W files a motion to estop H from raising any issues in the divorce trial which might modify or negate S County's protective order. T/C denies motion and W filed mandamus.

CA denies mandamus holding that the issuance of a protective order by another ct. which affects the SAPCR issues in the divorce ct. does not deny the divorce ct the right to make SAPCR decisions in the divorce trial even if such orders contradict the protective order. If there are conflicts, W's remedy is by appeal, not mandamus.
In the Interest of Knott, No. 06-02-00148-CV, not yet published (CA, Texarkana). H & W divorced in '89 with H having to pay c/s. In '95 H remarried but before doing so H & W2 signed a pre-nup saying that any income from the parties' sep. prop. remained the sep. prop. of that party. Apparently W2 had a lot of stock or other income generating sep. prop. W1 then filed a motion to increase c/s (that will teach him to marry that rich bitch). In calculating H's net resources for c/s purposes, the T/C included the income arising from W2's separate prop. H appeals.

Reversed. The T/C erred by including W's income in H's net resources because:
1. The pre-nup made W's dividends and interest her sep. prop. Even tho §4.003(b) says you can't affect c/s by signing a pre-nup., this means the obligor can't use a pre-nup to change the character of what would otherwise be the c/s obligor's income to reduce that obligor's c/s obligation.
2. §4.003(b) doesn't override W2's const. right to enter into a pre-nup unless the pre-nup is done for fraudulent purposes.
3. Even if there was no pre-nup, you still can't use W2's generated income in H's c/s calculation because §154.062(b) defines net resources as the c/s obligor's salary, interest, dividend, etc. not those of his new spouse as that income is a part of the net resources of the new spouse, not the c/s obligor.
Comment - A well reasoned opinion which should end all this speculation about adding the non-earned income of a new spouse into the net resources of the c/s obligor.
In the Matter of the Marriage of Scott, No. 07-01-0200-CV, not yet published (CA, Amarillo). W filed for divorce after 53 years of marriage (while there is life, there is hope). Part of the divorce fight was the value of the parties' home. Various witnesses testified that the house had a FMV of somewhere between $80,000 to $150,000. W put into evidence a 3 yr. old tax appraisal from the local tax appraisal dist. showing the house's value at $35,610. The T/C used the $35,610 value.

The CA reversed finding that there was insufficient evidence to support the T/C(s value finding. "...authority has long recognized that values reflected by the tax rolls do not reflect actual values."

Comment - Does this mean you can't use tax values in trials to prove FMV? No, especially in Harris County where these values are updated almost on a yearly basis. Scott may be good law in rural counties where years may intervene between value appraisal dates or where you have live experts whose opinions are at great variance with the tax rolls but I don(t think its applicable to urban counties whose life blood (taxes) are dependent on current and higher tax value appraisals. However, if you have a case where you want to exclude a property tax apprisal, here it is.