A.G. v. Lee, No. 01-0471, 46 Sup. Ct. J. 9. H & W divorced in '80 but H didn't pay his c/s so in '87 the A.G. obtained a $16,9000 judgment against him for back c/s but the judgment didn't provide for post judgment interest. In '98 the A.G. issued an adm. wage withholding order against H's employer which included post judgment interest which H contested. The T/C and CA ruled that the A.G. couldn't claim post judgment interest since it wasn't ordered in the '87 decree.

Supremes reversed. Post judgment interest is automatic and is implied in every decree even if there's not a word about it in the original judgment.

Comment - This opinion now negates several CA opinions that hold to the contrary.

Nothing new - just a reminder. In re: Ohiri, No. 01-02-00843-CV, not yet published (CA, Houston-1st). H was held in contempt for failure to pay c/s but his incarceration was suspended provided he paid the back c/s timely per a fixed schedule. H didn't pay so W filed a motion to revoke H's probation. H appeared pro se but the T/C didn't advise him of his right to an atty. After H's probation was revoked and he was rotting in jail, he filed a H/C which was granted as failure to advise him of his right to counsel was a violation of §157.163 and his contstitutional rights.

Comment - Years ago I prepared a warning to be given in all contempt cases at every stage of the proceeding including revocations so Judges could keep them on their bench to prevent such memory lapses. As it appears there is a need to republish it, see the attached -- you can even reduce and laminate it kinda like a Miranda warning card for c/s deadbeats.

In the Interest of J.A.W. - N., No. 13-01-658-CV, not yet published (CA, Corpus). H & W had a dispute about the modification of c/s and visitation after the initial SAPCR order. In a rare display of intelligence, the parties agreed to mediate the matter prior to filing suit. They and their attys signed an irrevocable MSA to settle the disputes but H refused to sign the agreed modification order. W filed a motion to enter the order which the T/C did. H appealed claiming the MSA wasn't enforceable because: (1) there was no written agreement to mediate nor was there a ct. order to do so and (2) it was not a valid §153.0071 MSA as §153.0071 only applies when there is a pending suit whereas here there was no suit pending at the time of the mediation -- "on the written agreement of the parties or on the ct.'s own motion, the ct. may refer a suit...."

Affirmed. Nothing in §153.0071 requires the parties to have a written agreement as a prerequisite to mediation nor must there be a pending suit to have a valid MSA subject to enforcement by subsequent ct. action.

Comment - Good holding. It is comforting to see that the brief glimpse of sanity (agreeing to mediate) devolved into the usual stupid and costly litigation.

London v. London, No. 14-01-00603-CV, not yet published (CA, Houston-14th ). W filed a motion to increase c/s from that set in the '95 divorce decree coupled with a request for atty fees. At trial the T/C refused to allow W's atty to introduce his time records to support his atty fee claim as he failed to produce them in response to discovery. Additionally, W failed to present any evidence of the financial circumstances of her, H or the kids at the time of the original '95 decree. Amazingly the T/C increased H's c/s from $1,500/mo. to $4,500/mo. and awarded W $40,000 in atty fees. Shockingly H appealed. Reversed and rendered that W take zip. To have a modification of c/s there has to be a material and substantial change of circumstances of the parties at the time of the original order. No evidence, no modification. As to atty fees, W's atty argued that the T/C could presume the reasonableness of his atty fees per §38.004, Tex. Civ. Prac. & Rem. Code. Nope -- §38.004 doesn't apply to Fam. Code matters. You have to prove the reasonable and customary hourly rate & the reasonable hours expended.

Comment - How picky to require actual evidence to support a T/C's judgment. It would certainly speed things up if the appellate courts would just allow us to file our pleadings and then the T/C could send us a post card with its decision. Producing evidence is so time consuming and inevitably it conflicts so the fact finder has to think to resolve the evidentiary disputes. This "evidence required" is not judicially economical.

There ain't much alimony in East Texas. Carlin v. Carlin, No. 09-02-057-CV, not yet published (CA, Bmt.). H & W divorced in '98 with H paying alimony of $1,100 for 3 yrs. unless W "continues to be unable to support herself at appropriate employment because of the incapacitating disability" which currently exists. W has rheumatoid arthritis which worsened since the divorce. In 2001 W filed a motion to extend the $1,100/mo alimony which the T/C granted. On H's appeal, the Bmt CA reviewed the evidence produced whereby W testified about her extensive medical problems, including the braces she has to wear, and her 20 hr./wk bookkeeping job at Ace hardware that pays her $6/hr. She said she could not work anymore hours because of the pain but admitted that the main reason she didn't seek other employment was that she was the sole caretaker of her Alzheimer's stricken mother. She also admitted she was able to drive a car, cook, clean and do other household chores around her 3,800 sq. ft. home.

The CA reversed finding that W had not proved that she had an incapacitating physical disability primarily because she could function o.k. in the house-keeping mode and she never sought a higher paying job.

Comment - I know this case is fact specific but I guess if you can work thru the pain to slop the hogs, you aren't physically disabled for alimony purposes in East Texas.

In the Interest of N.R.C. and L.A.C., No. 14-01-01241-CV, not yet published (CA, Houston- 14th ). H & W divorced in Galveston in '91 with the parents being JMC's of the 2 kids. H had the kids during the school year and they were with W during the summer. In 2000, H filed a motion to terminate W's parental rights apparently based on the allegation that W was nuts and a danger to the kids. The T/C appointed an ad litem for the kids and ordered both H & W to pay $1,250. to the ad litem as cost. The T/C also appointed a shrink to examine W and conduct a battery of shrink tests on her. Although W did submit to being shrunk which resulted in a report favorable to H, she didn't pay the ad litem. W, pro se, also filed a motion for H & the kids to be shrunk "by an independent person" to offset the anticipated damaging testimony of the ct. appointed shrink. This motion was denied. Since W didn't pay the ad litem, the ad litem filed a motion to enforce which resulted in a $1,250 judgment against W and, although not plead for, the ct.'s A.J., as an additional sanction, rendered an order prohibiting W from presenting any witnesses on her behalf except she could call herself. (We'll teach this fruitcake not to pay our ad litem). Upon trial W's parental rights were terminated so she appeals.

Reversed. Sanctioning W for failure to pay the ad litem costs by disallowing any witnesses on her behalf (other than herself) was an abuse of discretion in that W's conduct (non-payment) bore no relationship to discovery. Even if it had, the sanction violated the TransAmerica guidelines (981/230) in that (1) non-payment of ad litem fees had no relationship to any evidentiary procedure and (2) the best interests of the kids can't be served by striking the testimony of knowledgeable persons, i.e., the sanction was excessive. Besides all this, the T/C abused its discretion by denying W's motion to shrink H & kids. Clearly H intended to use the ct. appointed shrink's report against W to prove W's mental condition thus W's motion satisfied the 2 prong test for a mental exam under TRCP 204.1 (good cause where a party's mental condition is in controversy).

Comment - This is just another example of the heavy handed methods of some courts -- you can probably achieve the same results if you would just be a little fair but no- you go into a overkill mode and achieve the opposite result which bankrupts both sides.

Stieren v. McBroom, No. 04-01-00587-CV, not yet published (CA, San Antonio). H & W divorced in '99 with an AID approved by the T/C whereby they agreed that any dispute between them arising from the divorce would first go to mediation and if that failed the dispute would go to binding arbitration, i.e. future disputes will never be decided by a court. In 2000, H filed a motion to reduce c/s which went to arbitration where H's c/s was reduced. W then file d a motion to vacate the arb. award which the T/C did and then the T/C denied H's motion to modify. H appeals.

After reviewing the evidence, the CA found that the T/C did not abuse its discretion in finding that the arb. award was not in the child's best interest (one of the two ways a T/C can void an arb. award under §153.0071) but once the arb. is set aside, the T/C has no authority to try the case -- it has to be sent back to arbitration although a new arbitrator may be appointed.

Comment- I've always been uneasy about parties contractually agreeing to forego the judicial system and I would never do so (unless I was in Hidalgo, Galveston or Hays Counties) but I guess this is the law.

In re: Vernor, No. 03-02-00580-CV, not yet published (CA, Austin). M (an Australian) & F (a good ole Texan) had a kid in '95 without being married. In '95 F filed a paternity suit whereby temp. orders were issued designating him & M as JMC's of the child and restricting the kid's domicile to Texas. This action was DWOPed in '98. M & F had a very stormy relationship and sometime in 2001 M fled with the child first to a battered women's shelter, then to N.M. and then back to Australia. F filed a 2nd paternity action on 6/1/01 in Texas while M and the child were in N.M. and "served" M with citation by publication in a local Williamson County newspaper (circulation 27). On 9/10/01, the same day W & kid left for Australia, F obtained a default paternity judgment whereby he had the right to establish the primary residence of the child. On 10/10/01, the T/C granted a H/C ordering the child returned to F in Texas. F then flew to Australia & filed for the return of the child under the Hague Convention which was served on M on 12/12/01 -- the first time she was made aware of any of these legal proceedings. In F's Australian pleadings he said he had the right to the child's custody per the '95 order (he neglected to mention the suit was DWOPed) & M's taking the child to Australia was in breach of his custodial rights. Not knowing any different, the Australian T/C ordered the child taken from M, enjoined M from removing the child from Australia & took the child's passport. After learning about the default paternity judgment, M hired a Texas atty who successfully had the default judgment set aside on 6/24/02. On 9/16/02, the T/C issued temp. orders whereby M was ordered to deliver the child to F in Texas 11 days later at her cost (oh yes, we just ignored the POME T/C's order instigated by F which enjoined M from doing so and also the fact she doesn't have the child's passport -- this is a real Texas T/C, not some furiner make believe court).

M filed mandamus to set aside the temp. order which was granted as the T/C abused its discretion by:

1. Ignoring the Australian injunctive order;
2. Ignoring the fact that M doesn't have the $6,000 to fly to Australia to pick up the child;
3. Ignoring that M's green card has long been expired so she's illegally in the USA already so if she leaves now, she'll never get back;
4. Doing all this in 11 days is neigh on to impossible and 3 or 4 other requirements which are equally unreasonable.

I know this is long winded but it leads to some great language on SAPCR temp. orders:

1. "A ct. abuses its discretion in imposing temp. orders without due regard for the current living situations of the parties, especially the stability of the child=s current living situation, and without regard for the financial or practical ability of the parties to comply with the court=s orders."
2. "In making temp. orders compelling the parties or the child to travel, the court must take into account the financial abilities of the parties."

Comment- Maybe I should add Williamson County to that arbitration list.

Last But Not Least, A Legally Insignificant Case That's So Bad It Has To Be Reported. Kennedy v. Kennedy, No. 03-02-00025-CV, not yet published (CA, Austin). While the divorce was pending, the San Marcos (Hays County) T/C ordered H & W to sell a piece of land and use the proceeds to pay certain items. The land was sold but W refused to sign the title company's proceeds check so H filed for enforcement. W failed to appear at the "show cause" hearing so she was arrested and brought before the T/C=s A.J. who held her in contempt (W was pro se) after denying her request for an appointed atty (hell, all an atty will do is slow us down). When W refused to sign the check, as a sanction, the A.J. awarded H $3,000 in atty fees; struck W's pleadings, and su sponte granted H a divorce. The A.J. did ask H's atty if she could grant the divorce and he responsed, "Well you probably can." which shows he was as dumb as the A.J. or he bent or broke the disciplinary rules by intentionally misrepresenting the state of the law to the court. 3 days later the T/C approved & adopted the A.J.'s order after denying W's timely filed appeal. The remaining issues (property division, child custody & c/s) were later tried to a jury. W appeals.

Judgment affirmed as there was no reversible error. I should stop here and make you read the opinion but if I do, somebody out there will think its o.k. to grant a "final divorce" as a contempt or other sanction. It seems that after granting the divorce, W filed several counter-claims for divorce and the issue of divorce was submitted to the jury which found divorce grounds. The CA did remark that you can't grant a divorce without disposing of the remaining issues such as property division, etc. but since nobody ever used the T/C's default divorce date to determine property rights and other issues, the A.J.'s stupidity was harmless error. I'm not sure that's true when you learn (this isn't in the opinion but W's appellate atty told me) that shortly after granting the default divorce, H remarried. During the jury trial, although H's new wife was called as a witness, she was allowed to sit with H during the entire trial because "as a party's spouse, she is exempt from the Rule." This ruling was made by a visiting judge who was as well versed in the law as the A.J.

Comment - Sometimes you just want to hang your head in shame. Are the inmates really running the asylum?