 Gray's Interesting Cases - December 2004 / January 2005
 
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- Dessens v. Dessens, No. 14-03-00139-CV, will not be published, memo opinion (CA, Houston 14). H & W divorced in '96. H was to sell the house by a specific date which he did by signing an EMK w/ X. W refused to sign the deed so H filed a motion to enforce which the T/C denied. X then intervened to force W (or the T/C's Receiver) to sign & deliver the deed. The T/C granted X's request and also awarded atty fees to be paid out of W's share of the sales proceeds. W appealed on the basis that X didn't have the right to intervene as the denial of H's motion to enforce ended the active litigation thus there wasn't a pending action into which X could intervene. Additionally the T/C couldn't award atty fees paid from her share of the sale as this was homestead which is exempt from creditor claims.
CA affirmed. As the T/C ordered the house sold and it hasn't, the T/C has the continuing juris. and duty to enforce its own decree thus the issue of the house sale is pending to the extent any interested person can intervene regarding the house sale. As to atty fee/homestead issue, the party claiming homestead protection has the burden to plead and prove homestead which W didn't do so the sales proceeds aren't protected.
Comment - Time and time again I see T/C's and attys just assume that if a residence is sold it's entitled to homestead protection which just isn't the case. It's easy to prove homestead but most people don't plead it which is a major mistake.
- In the Interest of P.A.Y. & S.L.Y., No. 10-03-00046-CV, not yet published (CA, Waco). H & W divorced with H being ordered to pay c/s in excess of the guidelines and alimony to W. Unfortunately no evidence was introduced as to W's income or the kids' expenses. There was a temp. order earlier filed in the case which, for some unknown reason, had W's financial info. statement attached. This temp. order wasn't introduced into evidence nor did anyone request the T/C to take judicial notice thereof. H appeals.
The CA affirmed by saying that it is apparent that the T/C relied upon the financial statement attached to the temp. orders to determine c/s and alimony which the T/C could do by judicial notice even tho no one, including the T/C, mentioned it.
Comment - Horse hockey. The concurring opinion says it best. "This should make every trial lawyer shudder...most trial attys will be aghast at the T/C's ability to consider something in making a determination w/o telling the parties it is taking judicial notice of it." The majority opinion is clearly wrong and I am duly aghast while shuddering.
- In the Interest of B.T.T., No. 04-03-00946-CV, not yet published (CA, San Antonio). In '96 the A.G. filed a paternity suit on behalf of M against D who was a serviceman stationed in Hawaii. A reciprocal suit was filed in Hawaii and a '97 default judgment was entered against D establishing paternity and ordering c/s. In 2000, after registering the Hawaiian judgment in Texas, the A.G. took a c/s arrearage judgment against D. After this was done D had a DNA test done which proved that he wasn't the kid's daddy. D then filed suit in Hawaii to set aside the '97 decree for violation of the SSCRA. In 2003 the Hawaiian T/C set aside the '97 decree as "null and void." D then filed a motion in Texas to set aside the 2000 c/s judgment which the T/C did. The AG appealed on the basis that when a foreign c/s order is filed for registration in Texas, the c/s obligor has 20 days to contest (§159.606) or it becomes a Texas decree. As D didn't contest, he can't question the validity of the Texas c/s order now.
Affirmed. Under the Full Faith & Credit clause of the U.S. Const, a Texas ct. has to recognize and enforce the 2003 Hawaiian judgment voiding the '97 default thus the Texas registered c/s decree is "void" as is the c/s arrearage judgment which is based on a "void" judgment.
- In re Sanders, No. 04-0243, not yet published (48 Tex. Sup. Ct. J. 11). In March '04 I reported on this case when the Dallas CA disqualified an atty from representing her client as the atty was the client's employer because he was paying his atty fees by doing odd-job carpentry work for the atty because he had no cash. The Dallas CA found that the atty was a "material" witness, i.e. she might be a witness to establish an essential fact --- H's earning capacity. In my usual wishy-washy way, I called this opinion stupid and it should be ignored.
Well H's "disqualified" atty filed mandamus with the Supremes who granted same. In a well reasoned opinion (of course they agreed with me) which never used the word "stupid," the Supremes said that if you are seeking to disqualify an atty as being an "essential fact" witness, the seeking party has the burden to show there is no other witness or evidence to prove the "essential facts" except the atty. In this case H or the atty's billing records could have been used to prove H's earning capacity. As W failed in her disqualification burden, H's atty is not disqualified.
Comment - Told ya!
- O.K. Justice Guzman, the honeymoon is over. Kurtz v. Kurtz, No. 14-02-01187-CV, not yet published (CA, Houston-14). H & W divorced in '95 with H being ordered to pay $250/mo for 2 kids. The decree provided that H would pay W's atty fees should a motion to modify c/s be later filed (note it can be filed by H or W). H was pro se but he was also an atty. Having a fool for a client, W's atty apparently took advantage of H by inserting this atty fee provision. Sometime thereafter H had a substantial income increase to something in excess of $6,000/mo. net. H voluntarily increased his c/s to $1,350/mo. & timely paid this for the next 6 yrs. W filed a motion to increase c/s in 2001 plus damages for H's breach of other provisions of the decree. H c/c for various matters. After trial, the T/C increased the c/s to $1,350/mo. but refused to award W any atty fees relating to the c/s increase. W was claiming $42,000 in atty fees for 3 different attys. The T/C reasoned that since H was voluntarily paying in excess of the c/s guideline, the atty fees incurred by W to sue H which resulted in a c/s award in the same am't H was voluntarily paying were both unreasonable and unnecessary. W appealed with her position being that the decree was clear. H pays whatever atty fees she incurs. The words
"reasonable" or "necessary" are not a part of the decree.
CA reversed holding:
- any agreement to pay an unspecified am=t of atty fees has implied that such fees are reasonable and necessary
- the T/C erred in finding that a c/s order of $1,350/mo. was unnecessary as H was voluntarily paying that much. W would not have any legal recourse if H stopped paying. It was incumbent for W to obtain a ct. order.
Comment - I'd like to see H's brief in this matter as no one mentioned §156.403 which says, "A history of support voluntarily provided in excess of the court order does not constitute cause to increase the am't of an existing c/s order." As to the CA's concern that W would have no legal recourse if H ceased his voluntary payments -- yeah, she might miss a month but she could file a motion to increase & request that it be made retroactive. More importantly that concern was specifically addressed 20 yrs ago by Chief Justice Curtis Brown in White v. Adcock, 666/222/2 (a virtually identical case in which the requested c/s increase was denied) when he said:
"...the trial judge found that Adcock had voluntarily contributed to his children's needs beyond what was originally ordered. A parent who freely takes responsibility for his or her child should be encouraged. The potential absence of contempt enforcement power does not render the trial judge's order defective. It is somewhat incongruous to ask for guarantees from a volunteer who has proven faithful for over 10 years....For whatever reason, should Adcock not continue to voluntarily support his children, this would simply be a change of circumstances justifying a modification of the support order."
Too bad the CA wasn't aware of Justice Brown's wise words or worse still, they ignored them. This opinion indicates that the parties had settlement negotiations. If H offered to pay $1,350/mo. c/s & W refused, this factor could be introduced into evidence as it relates to reasonableness and/or necessity of c/s atty fees. Lawrence v. Boles, 631/764/2. All in all the T/C used common sense to reach a just result only to be frustrated by an appellate court whose attitude only increases litigation between parents to the ultimate disservice of the children. If it ain't broke don't fix it and if you sue, you pay your own atty fees.
- In re: Sullivan, No. 14-04-00514-CV, not yet published (CA, Houston 14th). M & F, both unmarried, signed a co-parenting agreement whereby F agreed to furnish his sperm to M so she could be artificially inseminated. The agreement said any resulting child would be considered the child of M & F as if they were married and F would have possession of the child as mutually agreed or if no agreement per a specific schedule attached to the agreement. A child was born on 3/2/04 but M refused to comply with the agreement. F then filed a paternity suit. M filed a motion to dismiss claiming that F had no standing to sue for paternity as §160.702 of the Assisted Reproduction statute says "...a donor is not a parent of a child conceived by means of assisted reproduction." §160.102 defines "donor" as "an individual who produces...sperm used for assisted reproduction..." As the child was born by assisted reproduction using F's sperm, F can't be parent thus he has no standing to sue for paternity.
The T/C denied M's motion so M filed for mandamus which was denied. In a case of first impression, the CA reviewed all of the applicable statutes and found them to be vague and conflicting but ultimately held that F had standing to sue for paternity. To confuse matters, the CA also held that even tho F had standing to sue if, upon trial, the T/C found that F qualified as a "donor," he might lose the paternity suit because he's not a parent. To make the waters muddier, the CA's opinion implies that the existence of the co-parenting agreement might effect the "donor" finding.
Comment - Apparent M has filed for en banc rehearing and the CA has asked for additional briefs so this story may not be over. The CA didn't address M's constitutional issues which are interesting so I'm sure we'll hear more of this case unless the parties settle. Jack, you need to get your statute tweaking tools sharpened.
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