Houston Bar Association - Family Law Section

Gray's Interesting Cases - November 2001

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  1. Lohmann v. Lohmann, No. 08-99-00470-CV, not yet published (CA, El Paso). H & W were divorced in '98 with H & W being the JMCs of their child. In '99 H filed a motion to modify requesting that he be designated the sole M/C of the child. W never filed an answer or any pleadings requesting affirmative relief although she appeared at the jury trial with her atty. At the close of the evidence, over H's objections, the T/C submitted 2 jury questions: (1) should the JMC be replaced with a sole M/C? and (2) if so, who should be designated the sole M/C? The jury made W the sole M/C. H appeals saying the T/C erred by submitting a jury question whereby the jury could appoint W as sole M/C when W had no pleadings requesting that relief. CA affirmed saying:
    1. The T/C has broad discretion in submitting jury questions, especially in SAPCR actions regarding conservatorship of, or possession/access to, a child.

    2. Compared to the best interest of a child, technical rules of pleading and practice are of little importance in determining child custody issues.

    3. The T/C was not bound by strict pleading rules as the jury questions were consistent with § 156.203 (modification from JMC to sole M/C - now §156.104) and the pattern jury charge

    Comment - I know there is a conflict between the pleading rules which are established to prevent ambush and sandbagging and the child's best interest rules but it seems a little harsh to reward W for not filing pleadings and forcing H to try a custody case where he didn't conduct discovery regarding W's possible claim of sole M/C since she didn't plead for it. If you are caught in this trap and find that the T/C is going to submit jury questions on unpled matters, what can you do? Since W hasn't pled for affirmative relief, before you rest your case in chief file a non-suit and start over or afterwards ask for a continuance on the basis of surprise so you can conduct discovery on W's non-pled issues. The T/C has some discretion on the continuance but not the non-suit. I don't know if this will work but it sure would improve your chances on appeal.

  2. Barnett v. Barnett, 45 Tex.Sup.Ct. J. 9. This is a 5/4 decision with a 4 judge majority, one judge concurring and 4 judges concurring and dissenting. H worked for HL&P and had ERISA benefits including life ins. policies. H, afer marriage, took out an ins. policy on himself and paid the premiums by payroll deducts. Unknown to W, H made his estate the policy bene. H died and the $169,000 policy amount was paid to his estate. H's will left everything to his mother who took the money and gave most of it to her other children. W filed suit against H's mother and everyone who received the cash from mom claiming that they held 50% of same for W under a constructive trust theory - the policy was community property which H unfairly gave away in fraud of W's community prop. rights. The CA ruled for W (985/520) but the dissent said mom should get everything as ERISA preempts Texas law, i.e. whoever is the bene. under an ERISA covered ins. policy gets the money. The Supremes reversed the CA and ruled in favor of the CA dissent. The Supremes held that even though the ins. policy (and its benefits) is community prop., the Texas community prop. law is preempted by the federal ERISA law so that ERISA wipes out the non-employee spouse's community prop. rights even if the bene. designation is in fraud of W's state's rights. Under ERISA (as interpreted by Engelhoff, 532 U.S. 141), the plan administator must pay to the person designated as the beneficiary under the plan or ins. policy and the ERISA protection for the plan administrator extends to also protect the recipients under the plan or insurance policy.

    Comment - WOW! What about all those divorce decrees you have written where H is ordered to maintain existing life ins. policies payable to the child or W as trustee for the child to secure future c/s in the event of H's death prior to satisfying his c/s obligation? Or those policies which are to be payable to W to secure an alimony or other obligations? If they are ERISA covered ins. policies and H changes the beneficiary, you are out of luck UNLESS the ins. policies are the subject of a QDRO which is served upon, and accepted by, the plan administrator Can such ins. policies be covered by a QDRO? According to Rick Johnson of QDRO Services, Inc., the answer is YES. If you have written such a decree and didn't get a QDRO on the ins. policies, you better apply for one under §9.101 or you might be in big trouble. Prior to divorce what can the non-employee spouse do to protect him or herself from the employee spouse changing the bene.? From a practical standpoint, not a durn thing. The U.S. Congress should amend ERISA to prevent the injustices caused by Barnett and Engelhoff.

  3. A.G. v. Redding, No. 05-00-01786-CV, not yet published (CA, Dallas). H & W were divorced in '84 and H was ordered to pay c/s of $150/mo until the youngest child reaches 18 (10/17/94). H didn't pay the c/s so on 2/23/00 the A.G. served H with an adm. wage withholding writ. H filed a motion to quash the writ claiming the c/s enforcement was barred by the 4 yr. S of L which was in effect when his youngest child reached 18 (10/17/94). This is basically the same argument that was made and approved in In re. A.D. (8/466) which is still pending before the Supremes. The Dallas CA seems to approve the ruling in In re. A.D. to hold that the T/C cannot render a judgment against H for the back c/s even tho the S of L was eliminated in '99 but what about an adm. writ? The 4 yr. S of L on adm. writs was in effect when the youngest child reached 18 but the Leg. eliminated the 4 yr. S of L on adm. writs in '97 so H's 4 yr. S of L "vested right" argument (See In re. A.D.) fails because at the time the Leg. eliminated the 4 yr. S of L on adm. writs, H=' unpaid c/s was still enforceable by an adm. writ as 4 yrs hadn't passed since the youngest child reached 18. The end result is that although the T/C can't render a monetary judgment against H because of In re. A.D. (The S of L on obtaining a monetary judgment for back c/s wasn't eliminated until i99 which was after the youngest child reached 18), the A.G. could still issue an adm. wage withholding writ.

    Comment - I still think the Supremes are going to reverse In re. A.D., so the differences between a ct. order for arrearages and an adm. writ are going to be moot.

  4. Stewart v. Stine, 57 S.W.3rd 94 (Tex.App. Ft. Worth, 2001). In '84 M. loaned her daughter (W) and son-in-law (H) $100,000 to buy a home. A demand p/n was signed. H & W divorced in '92 with an AID whereby H was to live in the house but upon sale, the balance owing to M ($50,000) would be paid and the remainder split 50/50 between H & W. H sold the house in '95 but there was only $6,800 left to pay M but H didn't pay her (remember M's p/n was long since barred by the 4 yr. S of L). M sued H as a 3rd party bene. of H & W's divorce AID. T/C ruled for M. CA reversed. To be a 3rd party bene. the 3rd party must be a donee or creditor bene. There was no evidence that M was intended by H & W to be a donee of their AID so M could only be a creditor bene. You can only be a creditor bene if the contracting parties (H & W) owed a legal obligation to the 3rd party bene. Since M's p/n was barred by the 4 yr. S of L in '88 and the AID wasn't signed until '92, neither H nor W owed a legal obligation to M so M can't be a creditor bene. Did the AID "acknowledge" M's p/n so it was revived in '92? Nope. The AID didn't acknowledge the "justness" of M's debt and did not "express a willingness to pay" - both required to revive an otherwise barred debt.

    Comment - If you are going to lend money to relatives, do it right or don't do it at all.

  5. Waite v. Waite, No. 14-00-01330, not yet published (CA, Houston-14th). W sued H for divorce on "no-fault" grounds (§6.001). H filed for an injunction to prevent his wife from obtaining a divorce on the grounds of "insupportability" as such grounds (and §6.001) are unconstitutional for a myriad of reasons. The T/C denied the injunction and H appealed. The 14th CA found that §6.001 (no-fault) is constitutional and affirmed the T/C. So why report on this case? Because there is a 24 page concurring and dissenting opinion by Justice Kem Frost which holds that §6.001 of the Texas Family Code is unconstitutional as it compels Texas cts. to make impermissible inquiries that control or interfere with the "rights of conscience in matters of religion" as protected in Art I, section 6 of the Texas Const.

    Comment - I ain't gonna make any. Draw your own conclusions.

  6. In the Interest of T.J.K., No. 06-00-00163-CV, not yet published (CA, Texarkana). I don't know the nature of the underlying suit (probably paternity) but in Dec. '99, the mother, father, and grandmother of the child agreed to a ct order which granted grandparent visitation with the child. 6 mos. later father filed a motion to modify to eliminate the grandparent visitation citing Troxel v. Granville, (530 U.S. 57) which was published after Dec. '99. T/C denied the motion finding that father waived the constitutional arguments of Troxel when he didn't raise them in '99. CA reversed. Modification of access to a child can be done when there are subsequent changes of fact. There is no difference between changes in fact and changes in law. If Troxel made the Texas grandparent visitation statute unconst., this is a change of circumstances which the T/C must consider. You can waive a const. claim if not raised in the original proceeding but such waiver only applies where the adjudication becomes final. In SAPCR matters the T/C retains continuing juris. to modify so a change in law, even const. law, after the initial determination can be the basis of a modification motion. Waiver doesn't apply in this case.

    Comment - Boy this is going to add gasoline to the fire of grandparent visitation and Troxel. Note that the CA did not say that Troxel made Texas' grandparent visitation statute unconst. It only said that the child's father did not waive his right to present that argument to the T/C. I also note with interest that the Texarkana CA made no mention of Lilley (43/703) which held that Troxel did not void the Texas grandparent visitation statute.

  7. In the Interest of K.R., 45 Tex.Sup.Ct. J.6. Remember the parental termination case where dad's rights were terminated by a jury in a trial where dad was handcuffed throughout the trial? The 14th CA reversed finding that dad's const. rights were denied by being handcuffed. Well the Supremes reversed. The Supremes held that handcuffing dad might have been error but it was "harmless error" in that dad did not show that his handcuffing caused the jury to reach an improper verdict.

  8. Slaughter v. Clement, No. 08-00-00174-CV, not yet published (CA, El Paso). H & W divorced in '92. W filed a motion to modify (the opinion doesn't tell us what was sought to be modified but I assume it was child support or visitation). H apparently filed a general denial with a request for atty fees. The case was set for trial but neither W nor her atty appeared. The T/C entered a judgment denying W's motion and awarded H atty fees against W. Can a T/C do that? Nope. When the moving party fails to appear, the T/C cannot adjudicate the merits of the moving party's claim - it can only dismiss for want of prosecution after notice and hearing to the non-appearing moving party (Rule 165a). Judgment reversed.

    Comment - Seems easy enough but wait. What if W's suit was for divorce and H had filed a counterclaim for divorce? W doesn't appear but H does. What does the T/C do? Proceed with H's counterclaim and grant the divorce? O.K. but isn't this divorce interlocutory until W receives notice of the T/C's intent to DWOP W's suit and has a hearing thereon? What about the community estate which continues to amass assets after the interlocutory decree and exists undivided at the time of the DWOP order when the divorce becomes final, or worse yet W appears with a reasonable excuse for not appearing so the T/C can't DWOP. What do you do then? What if W becomes pregnant between the interlocutory rendition and hearing on the DWOP? Does the child have a presumed father? What if W's suit is to increase c/s and H's counterclaim is to reduce c/s? The T/C proceeds with H's counterclaim and reduces c/s. Isn't this reduction a denial of W's request to increase thus an adjudication of the merits of W's claim which is supposedly prohibited by this opinion? This may be a case where an apparently easy pronouncement of the law can cause a lot of problems. Perhaps this holding is only good law where no counterclaim is filed. Who knows? The Shadow knows.

  9. Everybody finally agrees - protective orders are appealable. Kelt v. Kelt, No. 10-00-272-CV, not yet published (CA, Waco). W filed an application for a protective order against H which was granted. H appealed. The Waco CA recognized that they had previously held in Normand v. Fox (940/401) that protective orders are interlocutory in nature and not appealable (mandamus is the only relief); however, since the decision, 4 sister courts have held that protective orders are appealable (San Antonio, 985/516; Corpus, 15/163; Ft. Worth, 22/510; and Dallas, No. 05-00-01925-CV, not yet published). Normand v. Fox is recanted so now protective orders are appealable even in Waco.

    Comment - A welcomed decision which eliminates a split of authority on this appellate