The issue before the San Antonio CA was, "When is a man a man and when is a woman a woman?" In a very well written and intellectual opinion which reads like a murder mystery because the answer isn't revealed until the penultimate paragraph, the CA held, as a matter of law, that irrespective of the miracles of modern medicine, C is a man thus he couldn't marry another man and can't be that man's surviving spouse. As an aside the CA also found that the T/C erred in granting the change to C's birth cert. as § 191.029 relates only to "errors" on the birth cert. as of date of birth not "inaccuracies" occurring after the birth due to surgery. I understand that Harris County judges have heretofore routinely approved these new birth certs. for sex change cases but I assume this practice will cease with this opinion.

Comment - In the immortal words of Darrell Royal, "You gotta dance with the one who brung ya."

2. Fleming v. Easton, 998 S.W.2d 252 (CA, Dallas). H & W divorced & H was ordered to pay c/s which did not terminate upon his death but would be binding on his estate. H died owing back c/s. W filed a motion in H's probate proceeding requesting confirmation of the accrued c/s; future c/s will become a lump sum; and making all these amounts a claim against H's estate. The estate claimed that the probate ct. had no juris. over these matters. The probate ct. did grant W judgment for the accrued c/s but refused to modify the c/s order citing its lack of authority. W & estate appeal.

CA ruled that the divorce ct. had the original and continuing juris. over c/s enforcement and modification of any c/s order thus the probate ct. didn't have juris. to do anything regarding the past or future c/s.

Comment - No mention was made of In re Graham (971/56) perhaps because it was a guardianship case; however, the logic of Graham would seem to support the probate juris. except W never filed a motion in the probate ct. to transfer the c/s issues from the divorce ct. to the probate ct.

3. Guyot v. Guyot, No. 2-98-354-CV, not yet published (CA, Ft. Worth). H & W reached an agreement resolving their divorce and dictated it to the Ct. reporter. Apparently the T/C didn't render its judgment at that time (dumb - you always render your judgment granting the divorce and approving the psa as soon as its on the record thus keeping some one from saying king's x). W's atty drew up a decree complying with the settlement but H refused to sign so W's atty filed a motion for entry. At the entry hearing, H's atty appeared and said that H had withdrawn from the Rule 11 agreement. The T/C duly noted H's consent withdrawal on the Ct's docket sheet and then signed the submitted decree. H appealed.

CA affirmed. The Ct's notation on its docket sheet did not preserve H's claimed error of signing an "agreed decree" after H withdrew from the agreement prior to rendition.

Comment - If you have a T/C that's not smart enough to render upon an agreement being presented, for gosh sakes file a written notice withdrawing your consent prior to rendition - a docket sheet entry is not enough. Query? What if the entry hearing had a Ct. reporter and you withdrew your consent on the record before rendition? This would probably be o.k. but its so simple to handwrite and file a formal withdrawal of consent.

4. McGuire v. McGuire, No. 01-98-0044-CV, not yet published (CA, Houston-1st). H & W divorced in Feb., '93 per a psa signed in Aug. '92 whereby H was ordered to pay $800/mo. in c/s. In '97 H filed a motion to reduce c/s due to his lower income. At trial H offered his '92 thru '97 federal tax returns to show his beginning & ending income during the years. W objected to the '92 tax return because it predated the Feb. '93 divorce date, i.e. the '92 income wasn't the bench mark for the Feb. '93 c/s determination. T/C admitted the '92 return & later reduced the c/s. W appeals.

CA affirmed.

Comment - Although the CA didn't really say why the '92 tax return was admissible other than saying it showed H's income just 2 mos. before the Feb. '93 decree was signed, common sense (God forbid using this as a standard) tells us that when parties set c/s they usually use the preceding tax year to determine the amount of c/s set forth in a divorce decree signed in the following year. I think this is the 1st case that supports this reasonable conclusion.

5. Licata v. Licata, No. 14-96-01046-CV, not yet published (CA, Houston-14th). H, an atty, and W were in a divorce trial. W had been in some sort of accident where she settled her claims against 2 different defs. (or insurance companies) for $662,500 of which $389,222 was left at time of trial. One claim's settlement papers clearly said the settlement amount was for W's pain & suffering only and only W signed the papers. The 2nd claim's settlement papers were also for pain & suffering but didn't say whether it was W's or H's or a combination. These papers were signed by H & W. W & her p.i. atty testified that only W was injured & W's CPA testified that W treated the settlement amounts on her tax return as if it was her pain & suffering damage recovery. H didn't admit the p.i. pleadings & relied solely on the point he had to sign the 2nd settlement papers whereby both he & W released any claims they might hold. H's law practice consisted of p.i. lawsuits, a lot of which he referred to other attys for preparation & trial. Some matters he handled himself. In dividing the parties' property, the T/C awarded to W the entire remaining settlement funds as her sep. prop. As to the law practice, the T/C awarded W 50% of any income derived from cases referred to other attys and 30% of any income from non-referred cases which H had signed up as of divorce date. H appealed on the sufficiency of the evidence to prove the separate character of the p.i. settlement funds and awarding W a part of his law practice primarily claiming that he had to work post divorce to earn those fees so the T/C was awarding W part of his property which would be acquired by H's efforts post divorce.

CA affirmed. As to the sep. prop. issues, the 1st release saying it was for W's pain & suffering created prima facie evidence that the $ was W's sep. prop. The evidence on the 2nd settlement proved it was W's sep. prop. Just because H signed the release on the 2nd settlement didn't negate the prima facie evidence on the 1st settlement or negate the clear & convincing settlement on the 2nd settlement. As to the law practice questions, H had the burden to show that the T/C abused its discretion in dividing the referred & non-referred case income in the way it was done. There were no findings of fact requested. H didn't produce any evidence that on the non-referred cases he would have to do post divorce work so there was no abuse of discretion. As to referred cases, again H produced no evidence that he would have to do post divorce work to receive income so the T/C had the right to make an implied finding that the fees were 100% earned when the cases were referred to another atty.

Comment - Sounds to me that H had some good points but he lost out by not producing evidence at trial to support those points. The CA's finding that the settlement papers saying the settlement amount was for W's pain & suffering creates a "prima facie evidence" of sep. prop. is news to me but it's a lesson to all p.i. attys to put such language in their settlement papers to protect the sep. character of their married clients.

6. In the Interest of Chambers, No. 06-99-00013-CV, not yet published (CA, Texarkana). W filed a motion to modify which somehow wound up with a finding that H was $20,000 in arrears in c/s & ordered H to pay W the arrearage in installments of $150/mo. in addition to his regular c/s plus 12% interest on the $20,000. Later the T/C signed a wage withholding order directing H's employer to pay W the monthly c/s plus $150/mo. until everything is paid. W appeals on the basis that § 158.003 says that a wage order shall be in an amount so the c/s arrearage will be paid off within 2 years or at least 20% additional to the current c/s, whichever pays off the arrearage sooner. Since 12% interest on $20,000 is $2,400 and $150/mo is only $1,800/yr., the wage order doesn't come close to satisfying § 158.003.

CA affirmed saying that W ignored § 158.007 which says the T/C can structure a different amount in the wage order if the arrearage discharge amount makes H or his family suffer a hardship. Since there was no record or findings of fact, the CA assumes the T/C found a hardship per § 158.007.

Comment - Once again a trial lawyer screwed up an appeal by failing to request a record or findings of fact.

7. Paisley v. Paisley, No. 01-99-00664-CV, not yet published (CA, Houston-1st). H & W had a mediated settlement whereby, among other provisions, H was to pay for the kid's private schooling. The mediated agreement was filed with the Ct. W's atty drew up a divorce decree (which never mentioned the mediation agreement) pursuant to the settlement but no mention was made about private school fees (just a plain old scrivener error). The decree was sent to H (an atty) and his atty for "approval as to form & substance." H discovered the omission & instructed his atty to remain silent. The decree was signed by everyone with W and her atty unaware of the omission (with H secretly smiling to himself) and the parties appeared before an A.J. on an uncontested basis with no record being made. The T/C signed the decree on 11/2/98. In Feb. '99 W discovered the omission & filed a motion for judgment nunc pro tunc to include the private school obligation which is clearly set forth in the filed mediated settlement agreement. T/C granted W's motion so H appealed.

Is the omission of a provision of a filed mediation agreement in a divorce decree a clerical error? Maybe but not in this case. A T/C can only correct a judgment which incorrectly sets forth the actual judgment rendered. Here the divorce was heard by an A.J who can't render a judgment. The judgment is only rendered when the T/C signs the submitted decree. If the submitted decree contains an error and rendition occurs upon signing, this is a judicial error, not a clerical error. An atty's drafting error is not a clerical error. Since the T/C's plenary power had expired, the error can't be corrected by a nunc pro tunc.