Houston Bar Association - Family Law Section

Gray's Interesting Cases - November 2004

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  1. Cox v. Carter, No. 05-03-00678-CV, not yet published (CA, Dallas). H & W divorced in '87 with a decree that awarded W 50% of H's federal civil service pension when received by H "calculated as of date of divorce." H continued working and received salary increases until his retirement in '02. H then filed a motion to clarify whereby W would not receive the benefit or portion of his increased value pension based upon his post divorce salary increases. The T/C granted H's motion and W appeals.

    CA affirms. Although federal statute (5 C.F.R. 838.622) clearly states that a ct. order that contains a general instruction to divide a pension "as of divorce date" entitles a former spouse to all benefits attributable to the other spouses post divorce increases "unless the ct. order directly and unequivocally states otherwise." and the T/C erred in '87 by not "stating otherwise," no one appealed the '87 decree. This being so the '87 decree must be construed as it was written. W only gets what was due "as of divorce date," i.e. no increases.

    Comment - If you are representing someone and he/she has an interest in a federal civil service retirement plan, specifically provide for post divorce pension increases based on increased salary, etc. or you may get more or less depending on who is the employee spouse. If the T/C refuses to make this decision in compliance with the CFR, appeal or all may be lost.

  2. In the Interest of K.M.B. and D.R.B, No. 14-03-01090-CV, not yet published (CA, Houston-14th). H & W divorced in 2000. H got custody of the kids and W was ordered to pay c/s which she didn't pay. The A.G. filed a motion to enforce requesting jail time contempt, confirmation of the c/s due, judgment for atty fees, etc. W apparently filed a motion to reduce c/s as she had quit her job and was only working as a stripper part time. A hearing was held by an A.J. who reduced W's c/s to $224/mo.; however, no mention was made of the A.G.'s request for atty fees. H appeals the c/s reduction.

    Appeal dismissed. The T/C order is interlocutory as all pending issues were not resolved, i.e. no resolution of the atty fee request.

    Wait a second. The 14th's own opinion in In re: J.R. (123/669/3) says a failure to grant or deny atty fees doesn't affect the finality of a decree. J.R. isn't applicable because in J.R. §106.002 used to say atty fees may be assessed as cost; however, §106.002 now says a T/C may render judgment for atty fees. Huh?

    Comment - Naturally all these orders are on an A.G. form but the A.G. doesn't do what most competent lawyers do by ending each judgment with the finality phrase "All other relief requested herein which is not specifically granted herein is hereby denied." A word to the wise (excluding the A.G. of course who apparently never learns).

  3. In the Matter of the Marriage of Jeffries, No. 06-03-00126-CV, not yet published (CA, Texarkana). In '03 H & W divorced and the T/C divided their property. The T/C awarded W property and an owelty judgment worth $26,000 net. H got property worth $46,000 so H got 63% of the parties' estate - right? No because the T/C didn't consider the outstanding community debt of $65,000 which he also awarded to H who wound up with a negative $21,000 of a community estate having a net value of $5,000 ($24,000 + $46,000 less $65,000), W got 520% of the net estate. Upon H's appeal, did the T/C abuse its discretion in the property division?

    According to Texarkana, YES! "Because such a debt is a legally relevant factor in dividing the community estate, a court may abuse its discretion if it fails to consider such a factor" Murff, 615/696/2 (Tex.1981).

    Comment - This is the law except in the Eastland CA jurisdiction which would have affirmed this case as they did in Shackelford which I reported on last month. For shame, Eastland (wherever you are).

  4. In re: Leon, No. 01-04-00819-CV, will not be published -- memo opinion (CA, Houston-1st ). In '94 H & W divorced and H was ordered to pay $10,000/mo (this is not a typo) for c/s. In '04 W filed for contempt and H was served. H failed to appear at the contempt hearing so capias issued. H was arrested and brought before the T/C for hearing on the contempt (unfortunately no one thought to tell H that a contempt hearing was going to be conducted). The T/C told H he might go to jail (from whence he came) and asked him if he wanted the T/C to conduct an indigence hearing to see if H qualified for a ct. appointed atty. H said he wasn't indigent but he wanted an opportunity to hire his own atty. The T/C ignored this; held an indigence hearing; found that H wasn't indigent; proceeded to the contempt hearing; found H guilty of contempt; and sentenced him to 6 mos. in jail on 26 counts (to run concurrently) and there to remain until he paid W $276,250 plus attys fees and court costs. All along H begged the T/C to give him time to hire an atty which the T/C ignored.

    H filed H/C which was granted. As H did not waive his right to counsel, the T/C's refusal to allow H a reasonable time to retain counsel denied him his rights under the 6th Adm. of the U.S. Const.; Art. I, Sec. 10 of the Tex. Const; and Art. 1.051(a) of the Tex. Code of Crim. Proc.

    Comment - Normally I'd go nuts complaining about the abusive conduct of this T/C but this judge is one of the better ones. Everyone has a bad hair day now and then. One question I have is if H has rabbit blood but he is entitled to seek counsel of his own choice, can the T/C keep him in jail while he seeks counsel and for how long? This is the first case I know of where the denial of the right to seek counsel is the basis to free a c/s deadbeat. If I'm right, isn't it sad that the CA thought so little of this constitutional right that it deemed this opinion unworthy of publication?

  5. Stratton v. Stratton, No. 2-02-205-CV, will not be published - memo opinion (CA, Ft. Worth). Divorce filed wherein W requested post divorce alimony. The T/C didn't grant W's request even though the parties were married for more than 10 yrs. W appeals this plus other matters.

    CA affirms the alimony denial. At trial it was shown that W quit her job making $28/hr. because she wanted to stay home with her child and she hadn't done anything to seek employment thereafter until one week before trial. Neither W or her child had any incapacitating physical or mental disability; however, the assets she received in the divorce weren't sufficient to meet her minimum reasonable needs. §8.053 has the presumption that alimony should be denied unless the alimony requesting spouse diligently seeks employment or develops the skills to become self-supporting. As W did not overcome this presumption, alimony denial was appropriate.

    Comment - The §8.053 presumption is generally overlooked by the T/C's in alimony cases but if you're defending against such a claim it can be your greatest defense.

  6. Calhoun and Detamore v. Ying, No. 01-03-00039-CV, will not be published - memo opinion (CA, Houston-1st ). 7 mos. after the parties divorced, H filed a contempt & clarification motion against W, et al. After hearing the T/C held that the decree was too ambiguous to be enforced thus the contempt was dismissed. As to the clarification (which if granted would support the contempt action), the T/C found that this issue should be tried in a separate suit so he dismissed the clarification action w/o prejudice. H appeals claiming that the T/C erred in refusing to clarify after the T/C found an ambiguity.

    Affirmed. &secct;9.008(b) permits a T/C to clarify an ambiguous order which is the subject of a contempt action; however; this is a "may" statute. As a §9.008(b) clarification is discretionary with the T/C, the T/C is not required to enter a clarification order especially when the T/C said it would consider such clarification request in a subsequently filed suit.

  7. Agraz v. Carnley, 143 S.W.3d 547 (Tex. App. Dallas, 2004, no writ). H & W divorced in '96 with H being the JMC of the 3 kids having the right to determine domicile. There was a modification order signed in Jan. 2000, but H's domiciliary rights remained. In 2003 W filed another motion to modify requesting that she have the domiciliary designation rights and H be ordered to pay c/s. H was served but he didn't file an answer. At the abbreviated default hearing, W basically testified as to what she wanted & the T/C granted same. H files a restricted appeal.

    Reversed. Generally speaking no evidence is required to support a default judgment but this isn't true in a divorce action (§6.701) nor is it true in a SAPCR modification action (Considine, 726/253/2). W had the burden to prove: (1) what were the circumstances of the parties/kids on the date of the order to be modified (Jan. 2000); (2) what substantial and material changes have occurred since that date; and (3) why the requested changes are in the kids' best interest. Since W didn't do this, there is no evidence to support the T/C judgment thus there is error on the face of the record.

    Comment - About every 6 mos. I have to report on a case like this to remind bench and bar that just because there is a default in a family law case (at least as to a divorce or SAPCR action), you aren't relieved of the duty to prove the elements of your action. I know T/C's don't want to take the time to hear evidence in a default matter but if they don't, it's almost a guaranteed reversal. Honest folks, it doesn't take that much more time to do it right thus preventing a successful appeal.