Ad Litems

Court appointed psychologists and guardian ad litems have absolute immunity so long as they are acting as an extension of the court. Note the difference between a guardian ad litem appointed under rule 173 (not entitled to absolute immunity) and one appointed under TFC § 11.10. Delcourt v. Silverman  , 919 S.W.2d 777 (Tex. App.—Houston [14 ^th Dist.] 1996, writ denied), cert. denied, 117 S.Ct. 1698, 137 L.Ed. 824 (1997).

A guardian ad litem or next friend may obtain a divorce for incapacitated party. Wahlenmaier v. Wahlenmaier, 750 S.W.2d 837 (Tex. App. – El Paso 1988; pet denied, 762 S.W.2d 575).

Adoption

Birth mother cannot sign Relinquishment until 48 hours after she gives birth. Sims v. Adoption Alliance, 922 S.W.2d 213 (Tex. App. – San Antonio 1996, writ denied).

Agreements

1980 Amendments to Texas Constitution, allowing more liberal marital agreements, applies retroactively. Beck v. Beck, 814 S.W.2d 745 (Tex. 1991).

Premarital agreement partitioning parties’ earnings during marriage is upheld. Winger v. Pianka, 831 S.W.2d 853(Tex. App. – Austin 1992, writ denied).

A court cannot disregard or insert terms into a settlement agreement.  It is bound to accept the agreement of the parties.  In re Marriage of Ames, 860 S.W.2d 590 (Tex. App. – Amarillo 1993, no writ).

If a party violates agreed temporary orders, he is liable for breach of contract. Parker v. Parker, 897 S.W.2d 918 (Tex. App. - Ft. Worth 1995, writ denied).

To enforce an agreement to pay child support after age 18, you have to (a) state that the agreement is enforceable as a contract; (b) incorporate the agreement into the court’s final order or recite the same terms in the order; and (c) state that the agreement "survives the court’s judgment, the divorce decree, and is binding on the parties, their heirs, and their representatives". Bruni v. Bruni, 924 S.W.2d 366 (Tex. 1996).

Mediation agreement upheld in modification case.  In re J.A.W.-N, 94 S.W.3d 119 (Tex. App. – Corpus Christi 2002).

When damages are unliquidated, the court can award 10% pre-judgment interest as of 6 months after the incident giving rise to the cause of action.  Morales v. Morales, 98 S.W.3d 343 (Tex. App. – Corpus Christi 2003).

It is a good idea for a mediation agreement to provide that the “prevailing party” on a motion for enforcement is entitled to recover attorneys’ fees; definition of prevailing party.  Hawkins v. Ehler, 100 S.W.3d 534 (Fort Worth, 2003).

Trial court cannot appoint an arbitrator if parties have agreed to use someone else.  In re Cartwright, 104 S.W.3d 706 (Tex. App. – Houston [1st Dist.] 2003).

Oral agreements concerning engagement rings are subject to the Statute of Frauds.  Curtis v. Anderson, 106 S.W.3d 251 (Tex. App. – Austin 2003).

Even though a trial court can review an arbitration award re best interests, it cannot review a mediation agreement for that reason.  In Re Circone, 122 S.W.3d 403 (Tex. App. - Texarkana 2003).

Alimony

Although a jury may decide whether a person is disabled for purposes of statutory alimony, it is up to the judge to actually award the alimony or not.  Kennedy v. Kennedy, 125 S.W.3d 14 (Tex. App. – Austin 2002).

Appeals

What happens when an appellate court affirms a divorce but remands a property division? Do you use the values on date of divorce or when the new trial occurs? The trial judge has the discretion to use either. Parker v. Parker, 897 S.W.2d 918 (Tex. App. - Ft. Worth 1995, writ denied).

The standard for review in cases modifying conservatorship is abuse of discretion. IMMO Chandler, 914 S.W.2d 252 (Tex. App. - Amarillo 1996, no writ).

Saturdays and Sundays count for purposes of appealing Associate Judge’s recommendation in a timely manner. Peacock v. Humble, 933 S.W.2d 341 (Tex. App.—Austin 1996, orig. proceeding).

If the trial court fails to prepare findings of fact and conclusions of law after a proper request has been made, harm is presumed. Brown v. McGonagill, 940 S.W.2d 178 (Tex. App. – San Antonio 1996, no writ). But the presumption can be overcome if the record reflects that no harm was done. Las Vegas Pecan & Cattle Co,. Inc. v. Zavala County, 682 S.W.2d 254 (Tex. 1984).

A trial court cannot dismiss the appeal of a Master’s ruling simply because a hearing was not commenced within 30 days. The purpose of the 30 day rule is to give a party the right to mandamus. Once the appeal is perfected, the appellant is entitled to a trial de novo. Harrell v. Harrell, 986 S.W.2d 629 (Tex. App. – El Paso 1998, no writ).

For procedure re settling cases on appeal under new rules, see: Young Materials Corp. v. Smith, 4 S.W.3d 84 (Tex. App. – Waco 1999).

Good case re what constitutes an “abuse of discretion”.  In Re T.D.C., 91 S.W.3d 865 (Tex. App. – Fort Worth 2002).

You don’t have to appeal an associate judge’s ruling to the district court to be able to complain about it to the appellate court.  TFC sec. 201.106; In Re N.R.C., 94 S.W.3d 799 (Tex. App.-Houston [14th Dist.] 2002).

If the trial court hears a case and the parties agree to modify part of the judgment, you do not lose your right to appeal the rest of the judgment.  Alsenz v. Alsenz, 101 S.W.3d 648 (Tex. App. – Houston [1st Dist.] 2003).

Notice of appeal in a termination case must be filed within 20 days after the judgment is signed.  Post-trial motions do not extend that deadline. Texas Family Code section 263.405. In the Interest of J.L., (Tex. 2005).

Attorney's Fees and Costs

You can enforce an order for interim fees, but it helps if you call it "spousal support". Ex Parte Kimsey, 915 S.W.2d 523 (Tex. App. - El Paso 1995, no writ).

Appellate courts are going to let trial courts award attorney’s fees even when the lawyer who testifies was not disclosed in response to interrogatories. In the Interest of Striegler, 915 S.W.2d 629 (Tex. App. - Amarillo 1996, writ denied).

A trial court cannot sever a judgment in favor of an intervenor for attorneys’ fees. Mallou v. Payne & Vendig, 750 S.W.2d 251 (Tex. App. – Dallas 1988, writ denied).

Wife’s claim for attorney’s fees in divorce case may be based upon husband’s liability to furnish necessaries. Smoak v. Smoak, 525 S.W.2d 888 (Tex. App. – Texarkana 1975, writ dism’d). Schwartz v. Jacob, 394 S.W.2d 15 (Tex. App. – Houston 1965, writ ref’d, n.r.e.).

Trial court can award attorneys’ fees in “property only” divorce even though Family Code does not specifically authorize it.  Wilson v. Wilson, 44 S.W.3d 597 (Tex. App. – Fort Worth 2001).

Trial court does not have the inherent power to assess attorneys’ fees in a divorce action.  Toles v. Toles, 45 S.W.3d 252 (Tex. App. – Dallas 2001, pet. denied), but a court may apportion attorney’s fees as part of a just and right division of property.  Capellen v. Capellen, 888 S.W.2d 539 (Tex. App. – El Paso 1994, writ denied).

The only way that a court can assess attorneys’ fees as child support is in a child support enforcement case.  In Re Moers, 104 SW3d 609 (Tex. App. – Houston [1st Dist.] 2003).

Attorney’s fees rendered in prosecution or defense of a SAPCR may be awarded as necessaries for the child.  In Re A.J.L., 108 S.W.3d 414 (Tex. App. – Fort Worth, 2003).

For suggested language re how to prepare an order assessing attorney’s fees as child support: In Re A.J.L., 108 S.W.3d 414 (Tex. App. – Fort Worth, 2003).

A court cannot abate a case because a party fails to pay interim attorney’s fees.  In Re Flores, 135 SW3d 863 (Tex. App. – Houston [1st Dist.] 2004).

Bankruptcy

When one spouse  files bankruptcy, both spouses  lose their claims to sue for damages to joint community property and for losses related to the bankrupt spouse’s sole management community property. Douglas v. Delp, 987 S.W.2d 879 (Tex. 1999).

Characterization

Where property is purchased partly with separate cash and partly with community credit, there comes into existence a tenancy in common between the separate and community estates in proportion that each bears to the total purchase price. Bell v. Bell, 593 S.W.2d 424 (Tex. App. – Houston [1 ^st  Dist.] 1980, no writ).

Retained earnings in a separate property S Corporation are property of the corporation even though the community estate paid the income taxes. Thomas v. Thomas, 738 S.W.2d 342 (Tex. App. – Houston [1st Dist.] 1987).

Inception of title to profit-sharing plan occurred when spouse’s interest vested!? IMMO Joiner. 755 S.W.2d 496 (Tex. App. - Amarillo 1988), modified on reh’g on other grounds, 766 S.W.2d 263 (Tex. App.—Amarillo 1988, no writ).

When a spouse invests s/p into real estate and title is taken in both names  , the separate estate owns "equitable title" in the property, which cannot be divested. IMMO Thurmond, 888 S.W.2d 269 (Tex. App. - Amarillo 1994, writ denied). Even though there is a presumption of gift  , you can rebut it by proving that there is no evidence of a gift. Id at 273.

Renewal commissions  received after divorce and related to insurance policies sold during marriage have been held to be a "mere expectancy". Cunningham v. Cunningham, 183 S.W.2d 985 (Tex. App. - Dallas 1944, no writ).

If you deed your spouse  an undivided interest in community real estate, and the deed recites only nominal consideration, it becomes her separate property; the Uniform Marital Agreements Act does not apply. IMMO Morrison, 913 S.W.2d 689 (Tex. App. - Texarkana 1995, writ denied).

Disability payments received after divorce  under a policy purchased during marriage  were held to be community because of the inception of title doctrine . Anderle v. Anderle, 751 S.W.2d 955 (Tex. App. - Eastland, 1988 writ denied); same result for disability payments under employer plan. McElwee v. McElwee, 911 S.W.2d 182 (Tex. App. - Houston [1st Dist.] 1995, writ denied); same result even though injury occurred before marriage (no discussion of when employment began). Newsom v. Petrilli, 919 S.W.2d 481 (Tex. App. - Austin, 1996, no writ). But, these cases are probably all overruled by TFC sec. 3.008(b) (2005), which says that if disability or workers comp payments are intended to replace earnings during marriage they are community and, if not, they are separate.

An insurance agent signed an agreement during marriage by which he was entitled to receive "termination payments"  upon retirement. The Court held that a portion of those payments would be community based upon an apportionment formula. IMMO Wade, 923 S.W.2d 735 (Tex. App.—Texarkana 1996, writ denied).

When a party is injured prior to marriage but receives worker’s comp benefits  during the marriage, the benefits are separate property. Lewis v. Lewis, 944 S.W.2d 630 (Tex. 1997). Cf. Lowery v. Lowery, 688 A.2d 65 (Md. App. 1997).

When both spouses transferred property to the husband’s son by prior marriage in order to defraud their creditors  , the transfer occurred 4 years before the petition for divorce was filed, and they intended it to benefit the community, the court erred by ordering that the son reconvey it to the community estate. Jones v. Jones, 804 S.W.2d 623 (Tex. App. – Texarkana 1991, no writ).

Where trusts did not express "unmistakable intent" concerning character of income, trust income  became community property when spouse was entitled to it. Ridgell v. Ridgell, 960 S.W.2d 144 (Tex. App. – Corpus Christi 1997, no writ).

Where (1) a spouse used separate property as a down payment for real property purchased during marriage  ; (2) she borrowed the balance of the purchase price from a trust  of which she was the sole beneficiary; (3) testimony confirmed that the trustee was "looking only to" the spouse for repayment; (4) note payments were deducted from the spouse’s distributions; and (5) the spouse later paid off loan with separate property, the court held that the real property is 100% separate. Id.

Wife has no claim when Husband names mother as beneficiary of employer provided life insurance and then dies during the marriage.  Barnett v. Barnett (Tex. 2001).

Royalty payments paid during marriage of patent from prior to marriage are community property.  Alsenz v. Alsenz, 101 S.W.3d 648 (Tex. App. – Houston [1st Dist.] 2003).

When a spouse receives a settlement from a lawsuit during marriage, some of which could be separate property and some of which could be community property, it is the spouse’s burden to demonstrate which portion of the settlement is separate property.  Cottone v. Cottone, 122 S.W.3d 211 (Tex. App. – Houston [1st Dist.] 2003).

Baseball player’s contract to render services after divorce was not community property even though executed during marriage. Loaiza v. Loaiza, (Tex. App. – Fort Worth 2004).

You can trace separate property through a defined contribution plan .  TFC sec. 3.007(c) (2005).

Stock options are characterized by a formula: months of marriage divided by months of vesting period.  TFC sec. 3.007(d) (2005).

Insurance proceeds for casualty losses have the same character as the subject property.  TFC sec. 3.008(a) (2005).

Child Support

Trial judge who allocated household expenses on a per capita basis upheld by appellate court.  Rinehold v. Rinehold,  790 S.W.2d 404 (Tex. App. – Houston [14th Dist.] 1990, no writ).

A trial judge can order a spouse to pay mortgage payments for children's residence plus all reasonable repairs and maintenance  . IMMO Thurmond, 888 S.W.2d 269 (Tex. App. - Amarillo 1994, writ denied).

Trial Court affirmed when only offsetting 50% of a Schedule C earner's depreciation deductions  when calculating child support. IMMO Vogel, 885 S.W.2d 648 (Tex. App. – Amarillo 1994, writ denied).

If you agree (1) to pay child support and (2) that, if you die while a child is still a minor, your estate will be liable for payments arising after your death; and, if you intend for your estate to receive credit for social security survivor’s benefits  received by your children because of your death, you need to state that in your agreement. Lake v. Lake, 899 S.W.2d 737 (Tex. App. - Dallas 1995, no writ).

Gifts  to a child support obligor are not "net resources". Tucker v. Tucker, 908 S.W.2d 530 (Tex. App.—San Antonio 1995, writ denied).

San Antonio Court upholds order that father who makes $150,000 per year pays $3,000 per month to wife who makes a little less. Zajac v. Penkava, 924 S.W.2d 405 (Tex. App.—San Antonio 1995, writ denied).

A trial court cannot grant tax exemptions  to a parent if that parent is not entitled to them under the IRC. Lystad v. Lystad, 916 S.W.2d 617 (Tex. App. - Ft. Worth 1996, no writ); In Re C.C.N.S., 955 S.W.2d 448 (Tex. App. – Ft. Worth 1997, no writ); In the Interest of J.G.Z., 963 S.W.2d 144 (Tex. App. – Texarkana 1998, no writ).

No credit allowed for social security payments  for the benefit of the child. Kirby v. Chapman, 917 S.W.2d 902 (Tex. App. - Ft. Worth 1996, no writ). But, see: In the Interest of Allsup, 926 S.W.2d 323 (Tex. App. – Texarkana 1996, no writ) (if kids get social security retirement benefits, employee/obligor gets to offset that against his child support obligation); and, In the Interest of Rich, 993 S.W.2d 272 (Tex. App. – San Antonio 1999), holding that obligor was entitled to credit for social security disability payments received by mother for benefit of child.

Husband’s compensation changed from fixed salary to commission during on-again, off-again trial. Trial judge set child support based upon old compensation arrangement rather than new. Appellate court affirmed. IMMO Bertram, 981 S.W.2d 820 (Tex. App. – Texarkana 1998, no writ).

Where mother moved to another state just prior to filing divorce petition, trial court abused its discretion by ordering father to pay all travel expenses related to exercising rights to possession of the children. Id.

When Dad signs a paternity decree agreeing to pay support, and decree states that it is also a contract, his probate estate is liable for the support payments, but the child is not pretermitted even though the Dad did not provide for the child in his will. Estate of Gorski v. Welch (San Antonio, 1999, no. 04-98-00333-CV).

Trial court has the authority to order both parties to deposit funds to joint account for benefit of child, make joint decisions concerning use of funds, order disbursements when parties cannot agree, and that remainder of account will go to child when child support obligation ends. Bailey v. Bailey, 987 S.W.2d 206 (Tex. App. – Amarillo 1999, n.w.h.).

Trial court orders Dad with net resources in excess of $50,000 per month to pay $6,300 per month in child support, to be paid in a lump sum of $1,000,000 paid to a trust for the child. Needs of child included bodyguard, nanny, maid, groceries, telephone, car, country club membership, finance charges, clothing, and college savings. In Re Gonzales, 993 S.W.2d 147 (Tex. App. – San Antonio 1999, no writ).

In order to prove intentional underemployment, the obligee must prove that the obligor reduced his income for the purpose of reducing his child support payments.  DuBois v. DuBois, 956 S.W.2d 607 (Tex. App. – Tyler 1997).

You must plead for retroactive child support.  Martinez v. Martinez, 61 S.W.3d 589 (Tex. App. – San Antonio, 2001).

Interest on unconfirmed child support arrears is 12% per annum for arrearages accruing through 12/31/01; 6% thereafter.  In the Interest of A.R.J., Jr., 97 S.W.3d 833 (Tex. App. – Dallas, 2003).

If an order for medical support says that you must submit your bills to the other party within 10 days, and you don’t do it you may be screwed.  In Re T. J. L., 97 S.W.3d 257 (Tex. App. – Houston [14th Dist.] 2002).

Post-judgment interest accrues on judgment for past due child support, even if original judgment does not expressly provide for it.  Office of Attorney General of Texas v. Lee, 92 S.W.3d 526 (Tex. 2002).

Court refuses to decrease Dad’s child support when his tax returns indicated a reduction in his income but his life style was not reduced.  Royer v. Royer, 98 S.W.3rd 284 (Beaumont, 2003).

AG does not have standing to defend obligor’s claims of reimbursement on behalf of oblige; AG represents only the state.  In re A.M., 101 S.W.3d 480 (Tex. App. – Corpus Christi 2002).

Court can order obligor to carry life insurance for benefit of child so long as child support is payable.  Grayson v. Gray, 103 S.W.3d 559 (San Antonio 2003); but see Niskar v. Niskar, 136 S.W.3d 749 (Tex. App. – Dallas 2004) (appellate court reversed order to maintain life insurance policy for disabled child because of lack of proof).

You can get sanctions against the AG for issuing administrative writs without doing due diligence first.  In re A.C.B., 103 S.W.3d 570 (Tex. App. – San Antonio 2003).

Ten year statute of limitations on child support arrearages.  TFC sec. 157.005.

Constitutionality

What constitutes “best interests”? See Holley v. Adams, 544 S.W.2d 367 (Tex. 1976).

A retroactive law is only unconstitutional when it affects vested rights. Procedural laws, such as those governing the waiting period for signing affidavits relinquishing parental rights, do not violate the retroactivity clause of the Texas Constitution. Sims v. Adoption Alliance, 922 S.W.2d 213 (Tex. App. – San Antonio 1996, writ denied).

Custody

Custody problems involving different countries may be governed by the International Child Abduction Remedies Act.  See, e.g., Flores v. Contreras, 981 S.W.2d 246 (Tex. App. – San Antonio 1998, no writ).

Hitting wife in the face twice during a marriage and dragging her was not sufficient to establish a “history or pattern of abuse” sufficient to prevent joint managing conservatorship.  Pena v. Pena, 986 S.W.2d 696 (Tex. App. – Corpus Christi 1998, n.w.h.).

Factors to consider in relocation cases.  Bates v. Tesar, 81 S.w.3d 411 (Tex. App. – El Paso, 2002).

If a party puts “mental condition” at issue (e.g. naming their mental health experts who will testify – even if the experts were all court appointed), the trial court should order that everyone gets evaluated.  In Re N.R.C., 94 S.W.3d 799 (Tex. App.-Houston [14th Dist.] 2002).

Separating siblings is an abuse of discretion absent clear guiding principle.  Coleman v. Coleman, 109 S.W.3d 108 (Tex. App. – Austin 2003).

Trial court cannot order that children go to boarding school during custody modification case because it effectively changes their primary residence!? In re Ostrofsky, 112 S.W.3d 925 (Tex. App. – Houston [14th Dist.] 2003).

Fort Worth court does not believe that a grandparent has to prove that a parent is unfit to have standing.  In re M.N.G., 113 SW3d 27 (Tex. App. – Fort Worth 2003, no pet.).

One act of family violence is not necessarily a pattern.  Burns v. Burns¸116 S.W.3d 916 (Tex. App. – Dallas 2003).

Play therapy for children is legitimate basis for expert testimony.  In re A.J.L., 136 SW3d 293 (Tex. App. – Fort Worth 2004).

Siblings have standing to file original suits.  TFC sec. 102.0045 (2005).

Parenting Coordinators (another form of mediation) authorized.  TFC. sec. 153.605 (2005).

Parents have to file a parenting plan with the court 30 days before trial, which shall include verified (1) statement of income and (2) plan is proposed in good faith and is in the best interests of the child.  TFC sec. 153.603.

A false report of child abuse is a felony.  TFC sec. 261.107.

Interviewing Children

If a party requests it, including an attorney for the child, the court must interview a child who is 12 or older concerning conservatorship or who should have the right to designate primary residence .  And, of course, the court can do so if it wants to.  TFC sec. 153.009.

The Court has the discretion to interview any child re any issues in a SAPCR.  TFC sec. 153.009.

But, if you request a jury, a court cannot interview a child re a jury issue.  TFC sec. 153.009.

If an attorney for a party wants to be present, the court may allow it.  TFC sec. 153.009.

If you request that a record be made, the court must do so if the child is 12 or older.  TFC sec. 153.009.

Discovery

Houston Court of Appeals rejects a petition for mandamus when trial judge entered a Protective Order prohibiting discovery of corporate and trust records simply because husband was a trust beneficiary and wife failed to show any nexus between husband and corporation. Havens v. Lee, 694 S.W.2d 1 (Tex. App. – Houston [1 ^st  Dist.] 1984, no writ).

Best interest of child is too important to exclude evidence as a result of discovery sanction. In Re P.M.B. 2 S.W.3d 618 (Tex. App. – Houston [14 ^th  Dist.] 1999, no writ).

A trial court cannot strike a party’s witnesses because he fails to pay an ad litem’s fees; sanctions must be related to discovery issues.  In Re N.R.C., 94 S.W.3d 799 (Tex. App.-Houston [14th Dist.] 2002).

Disproportionate Division of Estate

Adultery can be shown by circumstantial evidence. Miller v. Miller, 306 S.W.2d 175, 176 (Tex. App. – San Antonio 1957, no writ).

Wife gets 86% of the community estate. Factors: (1) disparity of earning capacity; (2) Husband stipulated to fault; (3) Husband was awarded his law practice, which he valued at net book value; (4) Husband "appropriated" $60,000 of community funds during the pendency of the divorce; and (5) 30 year marriage. Cluck v. Cluck, 647 S.W.2d 338 (Tex. App. – San Antonio 1983, writ dism’d),

Wife gets 83.5% of the community estate. Factors: (a) Husband's alcoholism; (b) Husband’s adultery; and (c) Husband’s expenditures of community funds on other women (although exactly how much he spent is unclear). Morrison v. Morrison, 713 S.W.2d 377 (Tex. App. – Dallas 1986, writ dism’d),

Wife gets 85-90% of the community estate. Factors: (a) Husband had more education; (b) Wife has finger injury, which caused her difficulty in obtaining employment; (c) teenage daughter plus 3 adult children lived with Wife; (d) Husband has superior earning capability; (e) Husband was unable to account for a substantial amount of community savings (even though Husband was a careful record keeper); and, (f) Wife had been a housewife during the marriage. Rafidi v. Rafidi, 718 S.W.2d 43 (Tex. App. – Dallas 1986, no writ),

Wife gets 80% of the community estate. Factors: (a) Husband’s adultery; and, (b) Husband’s superior earning ability. Oliver v. Oliver, 741 S.W.2d 225 (Tex. App. – Fort Worth 1987, no writ),

Wife gets 65% of the community estate. Factors: (a) Husband had greater business opportunities; (b) Wife testified that Husband abused Wife and Wife’s daughter; and, (c) Husband had a greater earning capacity than Wife. Finch v. Finch, 825 S.W.2d 218 (Tex. App. – Houston [1 ^st  Dist.] 1992, no writ),

Wife gets 78% of the community estate. Factors: unknown. Golias v. Golias, 861 S.W.2d 401 (Tex. App. – Beaumont 1993, no writ).

Cruel treatment found when parties arranged to exchange a bookcase and husband found it face down on the road.  Henry v. Henry, 48 S.W.3rd 468 (Tex. App. – Houston [14th Dist.] 2001).

88% disproportionate division upheld where H had multiple affairs, was cruel and alcoholic.  Wright v. Wright , 65 S.W.3d 715 (Tex. App. – Eastland 2001).

What constitutes “cruel treatment”?  In re Matter of Rice , 96 S.W.3d 642 (Texarkana, 2003).

Cruel treatment must be proven by “full, clear, and satisfactory proof” and may be based upon uncontroverted evidence.  Id.

Good explanation of factors court considers when making a disproportionate division of community estate.  Id.

Husband’s ruining Wife’s credit is one of the grounds for disproportionate division.  Id.

Enforcement

Standard health insurance orders  are not enforceable by contempt. Ex Parte Whitehead, 908 S.W.2d 68 (Tex. App. - Houston [1st Dist.] 1995, no writ).

A contempt order is not void just because it contains typographical errors. Ex parte Hogan, 916 S.W.2d 82 (Tex. App. - Houston [1 ^st  Dist.] 1996, orig. proceeding).

If you plead for more than 6 months incarceration  , the respondent must expressly waive his right to trial by jury or the case must be tried to a jury. Ex Parte Suter, 920 S.W.2d 685 (Tex. App. – Houston [1 ^st  Dist.] 1995, no writ).

If a contemnor violates the terms of his probation, the order of incarceration must state that he is committed to jail for violating the Order of Contempt, not the terms of probation!? Id.

Holding someone in contempt for violations occurring after the motion is filed violates due process  . Ex Parte Chunn, 933 S.W.2d 534 (Tex. App. – Houston [1 ^st  Dist.] 1995, no writ).

If kids get social security retirement benefits  , employee/obligor gets to offset that against his child support obligation. In the Interest of Allsup, 926 S.W.2d 323 (Tex. App. – Texarkana 1996, no writ).

If the Court fails toadvise a pro se contemnor of his right to counsel  , even if the parties prove up an agreement, a contempt order is void. Ex Parte Acker, 949 S.W.2d 314 (Tex. 1997).

Divorce Decrees that fail to specify a location for payment are not necessarily too vague to enforce. Id.

Ambiguities  re amount of child support payments may be disregarded when the obligor has not paid anything at all. Id.

Contempt order must state whether sentence for multiple violations runs concurrently or consecutively. Ex Parte Shaklee, 939 S.W.2d 144 (Tex. 1997).

If you wait until after a recipient of retirement benefits  dies to seek a redistribution, you may have waited too long. Wilson v. Uzzel, 953 S.W.2d 384 (Tex. App.—El Paso, 1997, no writ).

A child support obligor gets an offset for social security disability payments  received by the obligee, but he does not get credit against an assignment to the state for AFDC payments. In the Interest of K.E.T., C.J.T., and K.R.T., 974 S.W.2d 760 (Tex. App. – San Antonio 1998, n.w.h.).

Evidence

A trial court can take judicial notice of its file at any time with or without a request from a party and is presumed to have done so.  Lacy v. First Nat’l Bank of Livingston, 809 S.W.2d 362 (Tex. App. – Beaumont 1991, no writ).

Best interests of child take priority over "rules of pleading and practice". Cohen v. Sims, 830 S.W.2d 285 (Tex. App. - Houston [14 ^th  Dist.] 1992, writ denied).

Witness statements in police reports are hearsay.  Kratz v. Exxon Corp., 890 S.W.2d 899 (Tex. App.—El Paso 1994, no writ).  But see, McCrae v. Echols, 8 S.W.3d 797 (Tex. App. – Waco 2000), holding that a police officers conclusions and opinions about an accident in his report were admissible under public records exception to the hearsay doctrine.

A party seeking to reverse a judgment based on admission or exclusion of evidence must show that the evidence was erroneously admitted or excluded and that the error probably caused rendition of an improper judgment.  City of Brownsville v. Alvarado, 897 S.W.2d 750 (Tex. 1995).

Dr. Shinder disqualified; primer on Daubert rule.  In re J.B., 93 S.W.3d 609 (Tex. App. – Waco 2002).

If a trial court excludes evidence, in order to preserve error all you have to do is offer a “short, factual recitation” of what the evidence would have been, instead of putting it on.  In Re N.R.C., 94 S.W.3d 799 (Tex. App.-Houston [14th Dist.] 2002).

A trial court cannot strike a party’s witnesses because he fails to pay an ad litem’s fees; sanctions must be related to discovery issues.  In Re N.R.C., 94 S.W.3d 799 (Tex. App.-Houston [14th Dist.] 2002).

Grandparents

For a nonparent to win custody of a child, he has the burden of proving specific acts or omissions of the parent that demonstrate an award of custody to the parent would result in physical or emotional harm to the child. Kirby v. Chapman, 917 S.W.2d 902 (Tex. App. - Ft. Worth 1996, no writ).

Death of a parent does not divest family court of jurisdiction.  Fleming v. Easton, 998 S.W.2d 252 (Tex. App. – Dallas 1999, no writ).

TFC sec. 102.004 provides that, absent consent of the usual suspects, in order for a grandparent to file an original suit for custody, he must provide “satisfactory proof” that “the child’s present environment presents a serious question concerning the child’s physical health or welfare” (1999).

There is a “parental presumption” in original SAPCR cases.  In order for a trial court to award custody (at least the right to establish residence) to a non-parent, it must find that it would significantly impair the physical health or emotional development of the child to appoint the parent, and the non-parent must prove that the parent voluntarily relinquished possession of the child to the non-parent for at least 12 months.  But, these rules do not apply to modifications. In Re T.D.C., 91 S.W.3d 865 (Tex. App. – Fort Worth 2002); In the Interest of P.D.M., (Tex. App. – Ft. Worth 2003). 

Of course, a grandparent can always get custody if both parents, the surviving parent, or the managing conservator consents.  TFC sec. 102.004.

Grandparents cannot file original suits for possessory conservatorship.  TFC sec. 102.004.

Grandparents can intervene in a pending suit if (1) they have had substantial past conduct with the child, and (2) if there is “satisfactory proof” to the court that appointing the parents as conservators of the child would flunk the significant impairment test.  TFC sec. 102.004.

Parents of dead father get access because mother cannot deny that it is in the best interests of the child.  In re N.A.S., 100 S.W.3d 670 (Dallas 2003).

A grandparent seeking possession must “overcome the presumption that a parent acts in the best interests of the parent’s child by proving by a preponderance of the evidence that denial of possession … would significantly impair the child’s physical health or emotional well-being”.  TFC sec. 153.433 (2005).

Homestead

Husband’s moving out of residence because divorce action was filed and subsequent deed of his one-half interest to Wife did not constitute an abandonment of his homestead rights.  Rimmer v. McKinney, 649 S.W.2d 365 (Tex. App. – Fort Worth 1983).

A trial court cannot order that a homestead is sold and proceeds distributed to unsecured creditors. Mallou v. Payne & Vendig, 750 S.W.2d 251 (Tex. App. – Dallas 1988, writ denied).

Owning another house that you designate as your homestead for tax purposes does not affect your rights as surviving spouse to assert your right to homestead your deceased spouse’s house. Hunter v. Clark, 687 S.W.2d 811 (Tex. App. – San Antonio 1985, no writ).

A surviving spouse must pay the upkeep of the homestead and is not entitled to reimbursement for improvements. Hunter v. Clark, 687 S.W.2d 811 (Tex. App. – San Antonio 1985, no writ).

You can waive your homestead rights in a prenuptial agreement. Williams v. Williams, 569 S.W.2d 867 (Tex. 1978).

If you file for bankruptcy, owe child support or alimony, and have a homestead, you may lose the homestead exemption because federal law providing that child support and alimony obligations are non-dischargeable preempts the Texas homestead exemption! In re Davis, 121 F.3d 952 (5 ^th  Cir. 1997).

Insurance

If a spouse burns down his separate property house containing community contents, his spouse cannot recover for her community interest. Chubb Lloyds Ins. Co. v. Kizer, 943 S.W.2d 946 (Tex App. - Ft. Worth 1997, writ denied).

An order requiring that an employee maintain health insurance on his spouse until she qualifies for coverage under COBRA should state the non-employee’s limited time to exercise her coverage option and that the employee’s duty to maintain coverage is limited to 60 days from the date of divorce. Winkle v. Winkle, 951 S.W.2d 80 (Tex. App. – Corpus Christi 1997, writ denied).

If one spouse is the "named insured" on a homeowner’s policy, the insurance company can settle a claim by paying the proceeds to that spouse without regard to the community interest of the other spouse. Little v. Texas R.V.O.S. Ins. Co., 926 S.W.2d 830 (Tex. App.—Eastland 1996, no writ ).

Judgments

A trial court properly denied a former wife’s application for bill of review, holding that even if her former husband and his attorney misrepresented (a) the value of stock, and (b) that he would remarry her later, as alleged, those acts would constitute intrinsic, not extrinsic, fraud  . Bell v. Bell, 434 S.W.2d 699 (Tex. Civ. App. – Beaumont, writ ref’d, n.r.e.).

Any fraudulent misrepresentations made to induce wife into agreed decree of divorce, and upon which she relied in doing so, constituted extrinsic fraud  . McFarland v. Reynolds, 513 S.W.2d 620 (Tex. App. – Corpus Christi 1974, no writ).

Extrinsic fraud  is that fraud which prevents fair adversary hearing by deliberately keeping party ignorant of action or otherwise fraudulently preventing his claim or defense. Smith v. Young, 620 S.W.2d 656 (Tex. App. – Dallas 1981, no writ).

Extrinsic fraud  is "collateral" fraud in the sense that it must be collateral to the matter actually tried and not something which was actually or potentially in issue in the trial. It is conduct that prevents a real trial upon the issues involved; "intrinsic fraud" is inherent in the matter considered and determined in the trial, the fraudulent acts pertaining to an issue involved in the original action; or the acts constituting fraud were, or could have been, litigated therein. Montgomery v. Kennedy, 669 S.W.2d 309 (Tex. 1984).

Misrepresenting the value of known community assets does not alone constitute extrinsic fraud  . Nothing is concealed if both parties had access to the relevant evidence about the asset through normal discovery procedures. Kennell v. Kennell, 743 S.W.2d 299 (Tex. App. – Houston [14 ^th  Dist.] 1987, no writ).

Evidence of husband’s threat to destroy value of community insurance business created fact issue of extrinsic fraud  . Rathmell v. Morrison, 732 S.W.2d 6 (Tex. App. – Houston [14 ^th  Dist.], no writ).

No default judgment without prior notice. Marr v. Marr, 905 S.W.2d 331 (Tex. App. - Waco 1995, no writ).

If you file a Motion for Judgment, and you want to preserve the right to appeal the content of the Judgment, you must state in the motion that you agree only with the form of the Judgment and note your disagreement with its content and results. Casu v. Marathon Refining Co., 896 S.W.2d 388 (Tex. App.—Houston [1 ^st  Dist.] 1995, writ denied).

The trial court has inherent power to enforce its judgments. Eichelberger v. Eichelberger, 582 S.W.2d 395 (Tex. 1979); Spradley v. Hutchison, 787 S.W.2d 214 (Tex. App. - Ft. Worth 1990, writ denied).

If the trial court renders judgment, and a party dies within 30 days, the court retains jurisdiction to reform its judgment. Turner v. Ward, 910 S.W.2d 500 (Tex. App. - El Paso 1994, no writ).

There is no statute of limitations on clarification of a Decree or Settlement Agreement. Dechon v. Dechon, 909 S.W.2d 950 (Tex. App.- El Paso 1995, no writ).

Turnover orders  must be definite, clear, and concise. And, they are appealable, final orders. Thomas v. Thomas, 917 S.W.2d 425 (Tex. App. - Waco, 1996, no writ).

Do catchall provisions  in Decrees awarding personal property to a party in possession include retirement benefits? The cases are split. See, e.g., Soto v. Soto, 936 S.W.2d 338 (Tex. App. – El Paso 1996, no writ).

If a trial court set asides a decree based upon an AID, you can’t sue for breach of contract.  Markowitz v. Markowitz, 118 S.W.3d 82 (Tex. App. – Houston [14th Dist.] 2003).

Docket sheet entries may constitute judgments under certain circumstances.  Bailey-Mason v. Mason, 122 S.W.3d 894 (Tex. App. – Dallas 2003).

You can’t attack an agreed judgment.  Mailhot v. Mailhot, 124 S.W.3d 775 (Tex. App. – Houston [1st Dist.] 2003).

Jurisdiction

Court had jurisdiction over father who had been to Texas 8 times to see his kids and where no other states had more significant contacts. Phillips v. Phillips, 826 S.W.2d 746 (Tex. App. – Houston [14 ^th  Dist.] 1992, no writ).

A trial court can assert in personam jurisdiction over anyone who is served with process within the state. Flores v. Melo-Palacios, 921 S.W.2d 399 (Tex. App.—Corpus Christi 1996, writ denied).

Any court with personal jurisdiction can rule on child support. Flores v. Melo-Palacios, 921 S.W.2d 399 (Tex. App.—Corpus Christi 1996, writ denied).

In a case where a Texas court ordered child support, both parents moved to other states, Alaska became the child’s home state under the UCCJA and PKPA, the Alaska court found that it had jurisdiction to modify child support because Dad was already before the court. McCaffrey v. Green, 931 P.2d 407 (Alaska 1997).

Service on father of child in Texas sufficient to comport with due process. In Re Gonzales, 993 S.W.2d 147 (Tex. App. – San Antonio 1999, no writ).

When suing a nonresident, the petitioner must allege that the respondent performed specific acts in Texas; otherwise, the respondent’s proof that he is a nonresident is sufficient to negate jurisdiction. Id.

Probate Court did not have jurisdiction to adjudicate child support arrearage or reduce future obligations of decedent to a lump sum. Fleming v. Easton, 998 S.W.2d 252 (Tex. App. – Dallas 1999, no writ).

Under the UCCJEA, Texas retains jurisdiction over a custody case even if the child resides in another state if one parent still lives in Texas and there is still a “significant connection” with the state and that substantial evidence is no longer available in this state concerning the child’s care, protection, training, and personal relationships.  TFC sec. 152.002.  The issue of whether Texas retains jurisdiction must be decided here. In the Interest of Bellamy, 67 S.W.3d 482 (Tex. App. – Texarkana 2002). 

A request for findings of fact and conclusions of law does not extend the plenary jurisdiction of the trial court.  In Re Gillespie (Houston [14th Dist.] 2003).

Once the trial court loses jurisdiction to the appellate court, the trial court cannot render temporary orders, even if a party discovers that the other party has hidden assets.  Bass v. Bass, 106 S.W.3d 311 (Tex. App. – Houston [1st Dist.] 2003).

Writ of mandamus is appropriate to challenge order re UCCJEA jurisdiction.  In Re Oates, 104 SW3d 571 (Tex. App. – El Paso 2003).

“In the absence of specific provisions to the contrary, in an order establishing conservatorship, the death of a parent managing conservator terminates the conservatorship order”.  Id.

Kids live with Dad in Texas.  Dad dies.  Kids stay with his parents in Texas for 3 more months and then move to NY to live with Mom.  4 months later, GP file suit for access in Texas.  No jurisdiction here!  Id.

Standing is implicit in the concept of subject matter jurisdiction.  In Re A.J.L., 108 S.W.3d 414 (Tex. App. – Fort Worth, 2003).

Liens

A court cannot impose an equitable lien on a spouse’s separate property  unless the underlying claim relates to the separate property. Johnson v. Johnson, 804 S.W.2d 296 (Tex. App. – Houston [1 ^st Dist.] 1991, no writ).

A trial court can impose an equitable lien on separate property only to secure reimbursement for improvements. Heggen v. Pemelton, 836 S.W.2d 145 (Tex. 1992). The lien cannot exceed the benefit to the community. Winkle v. Winkle, 951 S.W.2d 80 (Tex. App. – Corpus Christi 1997, no writ).

Modification

Father’s income went up after divorce. But, his child support obligation was still way above guidelines. Court denies request to reduce because no material change. Paying more than guidelines may or may not substitute for a material change. Farish v. Farish, 921 S.W.2d 538 (Tex. App.—Beaumont 1996, no writ).

A trial court can issue temporary orders in a suit to modify under TFC § 105.001. Morse v. Baker-Olsen, 929 S.W.2d 659 (Tex. App.—Houston [14 ^th  Dist.] 1996, no writ).

Numerous examples of what constitute a material change of circumstances  . IMMO Chandler, 914 S.W.2d 252 (Tex. App. - Amarillo 1996, no writ).

"While evidence of past misconduct or neglect may not of itself be sufficient to show present unfitness in a suit affecting parent-child relationship, such evidence is permissible as an inference that a person’s future conduct may be measured by her past conduct as related to the same or similar situation". Kirby v. Chapman, 917 S.W.2d 902 (Tex. App. - Ft. Worth 1996, no writ).

Trial court restricts Mom to Ft. Bend and contiguous counties even though her new husband got a much better job in Hawaii.  Bio Dad saw kids consistently and moved from Fla to Ft. Bend County to see them.  Good discussion of factors court considers in relocation cases.  In re Calderon, 96 S.W.3d 711 (Tyler, 2003).

Factors to determine whether trial court should let inmate appear in a modification and enforcement proceeding. It’s the inmate’s burden of proof.  In re D.D.J., 136 S.W.3d 306 (Tex. App. – Fort Worth 2004).

As of 9/1/05, both parties have to file parenting plans with a petition for modification or response.  TFC sec. 153.604.

Names

Father does not have a constitutional right to have child carry his surname. Concha v. Concha, 808 S.W.2d 230 (Tex. App. - El Paso 1991, no writ).

If it is the child’s best interest, the court can change the natural name to the name of a stepparent. Newman v. King, 433 S.W.2d 420 (Tex. 1968).

A nine year old’s request to change her name was not enough for Judge Theo Bedard. Bennett v. Northcutt, 544 S.W.2d 703 (Tex. Civ. App. - Dallas, 1976, no writ).

It’s ok to enjoin a parent from using another name while attending school. In the Interest of Baird, 610 S.W.2d 252 (Tex. Civ. App. - Ft. Worth 1980, no writ).

Father was entitled to an order requiring ex to use his surname when referring to his child without his having to show any resulting harm from using other names. In the Interest of Griffiths, 780 S.W.2d 899 (Tex. App. - Amarillo 1989, no writ).

Parties

A trial court can appoint a receiver to take control of corporate stock even if the corporation is not a party.  Receiverships in divorce cases are governed by the Family Code, not the Tex. Prac. & Rem. Code, 105 S.W.3d 213 (Tex. App. – Dallas 2003).

Paternity

A mother cannot file a paternity suit if the child has a presumed father. In the Interest of B.I.V., (Tex. App. – Corpus Christi 1992), rev’d, 923 S.W.2d 573 (Tex. 1996).

Mom who terminated parental rights of Dad #1 cannot sue to establish paternity of another man; termination implies paternity. In the Interest of A.L.J. a/k/a A.L.E., a child, 929 S.W.2d 467 (Tex. App. – Tyler 1996, writ denied).

Trial court affirmed when awarding retroactive child support only to date of filing, where Mom waited 10 years to file. In the Interest of J.H., 961 S.W.2d 550 (Tex. App. – San Antonio 1997, no writ).

Possession

Passive Mom was not in contempt for failing to deliver resistant children for periods of possession. Ex Parte Morgan, 886 S.W.2d 829 (Amarillo 1994, orig, proceeding).

Dad who encouraged 17 year old to visit Mom held in contempt when kid refused. Ex Parte Rosser. 899 S.W.2d 382 (Houston [14 ^th  Dist.] 1995, orig. proceeding).

Trial court can limit the persons allowed to transport the child. Capello v. Capello, 922 S.W.2d 218 (Tex. App. – San Antonio 1996, no writ).

Grandparent “access” statutes means that grandparents are limited to access and not allowed to have possession of child.  E.C. and S.C. v. Graydon, 28 S.W.3rd 825 (Tex. App. – Corpus Christi 2000).

Noncustodial parent has absolute right to elect Sundays overnight, but Wednesday overnights are subject to “best interest” standard.  In the Interest of Davis, 30 S.W.3d 609 (Tex. App. – Texarkana 2000).

Grandparent access statutes upheld despite U.S. Supreme Court opinion in Troxel.  Lilley v. Lilley, 43 S.W.3d 703 (Tex. App. – Austin 2001).

Grandparents granted access granted when mother admitted at trial that children should see their grandparents and mother’s lawyer fails to brief constitutional issue correctly.  In the Interest of N.A.S and A.D.S., (Tex. App. – Dallas 2003).

Grandparents must show that a parent is unfit under Troxel.  In re Pensom (San Antonio, 2003).

Procedure

Failure to give 45 days notice of trial setting may not be reversible error.  In re J.B., 93 S.W.3d 609 (Tex. App. – Waco 2002).

An attorney’s being a potential fact witness in a case is not enough to warrant disqualification. The burden is on the other party to prove that the attorney’s testimony is necessary to establish an essential fact.  In Re Bill Martin Sanders, (Tex. 2004).

Protective Orders

Whether or not you can appeal a Protective Order during a divorce proceeding is not a simple question.  You may have to resort to mandamus.  Bilyeu v. Bilyeu, 86 S.W.3d 278 (Tex. App. – Austin 2002), holding that appeal was not an available remedy.  See, also, In re K.S.L., Tex. App. - Tyler 2003), in agreement.

A Protective Order is a final, appealable order.  Cooke v. Cooke, 65 S.W.3d 785 (Tex. App. – Dallas 2001).  This is probably overruled by TFC sec. 81.009 (2005), which states that you can’t file an interlocutory appeal of a protective order during the pendency of a divorce, and you can’t file an interlocutory appeal in a SAPCR either.

Reimbursement and Economic Contribution

Using separate property to pay a community debt creates a prima facie right to reimbursement unless you are paying for the living expenses of the community. Winkle v. Winkle, 951 S.W.2d 80 (Tex. App. – Corpus Christi 1997, writ denied).

No reimbursement for child support payments made by Husband to former spouse; but the trial court can consider how much he spent on attorney’s fees litigating with ex-spouse. Farish v. Farish, 982 S.W.2d 623 (Tex. App. – Houston [1 ^st  Dist.] 1998, n.w.h.). But see: Butler v. Butler, 975 S.W.2d 765 (Tex. App. – Corpus Christi 1998, no pet. h.), affirming trial court’s award of reimbursement for child support paid as result of paternity case filed during marriage where Husband did not tell Wife about the child at the time of marriage.

It’s OK for a trial court to reimburse the community estate when a spouse loses money day-trading.  Alsenz v. Alsenz, 101 S.W.3d 648 (Tex. App. – Houston [1st Dist.] 2003).

If a parent loans money to child and spouse for a house and then later forgives some of that debt and wants to treat it as a gift to the child, he better be careful and document it carefully.  In Re Matter of Royal, 107 S.W.3d 846 (Tex. App. – Amarillo 2003).

When husband contributed separate property to purchase of house for him and wife, court applied presumption of gift rule, not mixed title.  Id.

Lots of reimbursement claims.  Zeptner v. Zeptner, 111 S.W.3d 727 (Tex. App. – Fort Worth 2003).

Retirement Plans

The Berry formula does not apply to defined contribution plans. Hatteberg v. Hatteberg, 933 S.W.2d 522 (Tex. App. - Houston [1 ^st Dist.] 1994, no writ).

"SSB" benefits (i.e. early retirement subsidies) were part of "retirement pay" divided by divorce decree. Marsh v. Wallace, 924 S.W.2d 423 (Tex. App. – Austin 1996, no writ).

A trial court can divide "navy disability retirement pay" accumulated during marriage, but not VA disability benefits. In re Marriage of Reinauer, 946 S.W.2d 853 (Tex. App.—Amarillo 1997, writ denied).

Uniformed Services Former Spouses' Protection Act, 10 U.S.C. § 1408, prohibits post-divorce division or partition of military retired pay when divorce decree antedates June 25, 1981, and does not treat, or reserve jurisdiction to treat, retired pay. San Antonio court holds that jurisdiction to treat retirement pay was reserved because pension not divided in 1976 divorce decree became property held as tenants in common under Texas law. Such property divisible by partition suit, so trial court erred in granting summary judgment for former military spouse. McDougall v. Havlen, 980 S.W.2d 767 (Tex. App. - San Antonio 1998, n.w.h.) (Rickhoff, J.). Accord, Walton v. Lee, 888 S.W.2d 604 (Tex. App. – Beaumont 1994, writ denied), cert. denied, 516 U.S. 870 (1995). Compare Buys v. Buys, 924 S.W.2d 369 (Tex. 1996) (general residuary clause in decree reserved jurisdiction to treat pension), with Knowles v. Knowles, 811 S.W.2d 709 (Tex. App. - Tyler 1991, no writ) (§1408 barred post-decree division of military pension, plus residuary clause granted undivided property to military spouse).

Taxes

Punitive damages are taxable income. O’Gilvie v. U.S., 117 S. Ct. 452 (1996).

While a tax liability is not technically a "debt", a court may take tax liability into consideration in the division of property upon divorce, and may even require one party to assume the other’s tax liability. Mullins v. Mullins, 785 S.W.2d 5 (Tex. App. – Fort Worth, 1990, no writ).

IRA payouts to pay higher education costs are penalty free, including tuition and room and board if student is taking 50% of normal course load; not available for 401(k) plans.  Kiplinger’s (8/26/05).

Tax free gifts - $12,000 per year per donee (as of 2006).

Workers can contribute $10,000 - $12,000 per year to a SIMPLE.

If you are entitled to claim a dependency for your children, and your ex refuses to sign a Form 8332, the IRS may accept a certified copy of your divorce decree.  (Omans, TC Summ. Op. 2005-110).

Typical statute of limitations for IRS is 3 years, but they can go back 6 years if taxpayer omits more than 25% of gross income.  Kiplinger’s (10/7/05).

Temporary Orders

Temporary Injunction must include date when case is set for trial.  EOG Resources, Inc. v. Gutierriez (San Antonio, 2002)

Termination

Roaches in the house, food on the floor, dirty diapers, and general unsanitary conditions are not enough to terminate a mother’s parental rights. In re M.C., D.C., and C.W., 932 S.W.2d 35 (Tex. App. Eastland 1995, no writ).

Sexual abuse of one child is sufficient grounds for termination of a father’s right to his other children, even if the abuse did not happen in their presence. Lucas v. Texas Department of Protective and Regulatory Services, 949 S.W.2d 500 (Tex. App. – Waco 1997, writ denied).

"Engaging in conduct which endangers the child" does not require proof of injury to the child; placing the child in jeopardy is enough. The conduct need not be directed at the child. In Interest of B.R., 950 S.W.2d 113 (Tex. App. – El Paso 1997, no writ).

The involuntary termination of parental rights implicates fundamental constitutional rights.  Holick v. Smith, 685 S.W.2d 18 (Tex. 1985).

Termination: Mentally ill mother’s rights terminated in “failure to thrive” case.  In the Interest of N.V.D., 102 S.W.3d 268 (Tex. App. – Beaumont 2003).

Termination cannot be based upon a single act or omission.  In re K.M.M., 993 S.W.2d 225 (Tex. App. – Eastland 1999, no writ).

“endanger:, as used in Chapter 161 of the Texas Family Code means more than a threat of metaphysical injury or the possible effects of a less-than-ideal family environment.”  In re Uvalle, 102 S.W.3d 337 (Tex App. – Amarillo 2003); Tex. Dept. of Human Services v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987).

Appellate court reverses termination of druggie mother. In re K.C.M., 4 S.W.3d 392 (Tex. App. – Houston [1st Dist.] 1999, pet denied).

You cannot terminate a mother’s parental rights because of injuries to the child if you cannot prove that the mother caused the injuries.  In Re D.P., 96 S.W.3d 333 (Tex. App. – Amarillo 2001).

Defective jury charge is not good enough to reverse termination without objections before submission to jury.  In Re J.F.C., 96 S.W.3d 256 (Tex. 2002).

Texas Supreme Court has not decided whether ineffective assistance of counsel is grounds to reverse termination.  In Re J.F.C., 96 S.W.3d 256 (Tex. 2002).

Good discussion of fundamental error, substantive due process, and procedural due process by dissenting opinions.  In Re J.F.C., 96 S.W.3d 256 (Tex. 2002).

Termination cases get preference on appeal.  TFC section 109.002(a).

Torts

The elements of a cause of action for invasion of privacy are: (1) intentional intrusion, physically or otherwise, upon another’s solitude, seclusion, or private affairs or concerns, which (2) would be highly offensive to a reasonable person.  Valenzuela v. Aquino, 853 S.W.2d 512 (Tex. 1993). 

CPS has governmental immunity if it reveals the identity of a complainant. But, the complainant may still have viable claim under the Declaratory Judgments Act and, thus, collect attorney’s fees. Texas Dept. of Human Servs. v. Benson, 893 S.W.2d 236 (Tex. App.—Austin 1995, writ denied).

Minors are liable for their own torts. Parents have a duty to protect third parties from bad kids only if harm is reasonably foreseeable. Childers v. A.S., 909 S.W.2d 282 (Tex. App. - Ft. Worth 1995, no writ); Rodriguez v. Spencer, 902 S.W.2d 37 (Tex. App. – Houston [1 ^st  Dist.] 1995, no writ); Prather v. Brandt, 981 S.W.2d 801 (Tex. App. – Houston [1 ^st  Dist.] 1998, n.w.h.).

Injury to familial relations is an element of damages for negligence. Childers v. A.S., 909 S.W.2d 282 (Tex. App. - Ft. Worth 1995, no writ).

Texas does not recognize a cause of action for negligent invasion of privacy. Invasion of privacy is an intentional tort. Childers v. A.S., 909 S.W.2d 282 (Tex. App. - Ft. Worth 1995, no writ).

You can’t recover for intentional infliction if all you suffer is anger, depression, humiliation, worry, anxiety, vexation, or embarrassment. Villasenor v. Villasenor, 911 S.W.2d 411 (Tex. App. - San Antonio 1995, no writ).

"A duty exists to not place a child in a situation in which the risk of sexual abuse is heightened and in which the risk is foreseeable". Doe v. Franklin, 930 S.W.2d 921 (Tex. App. - El Paso 1996, no writ).

Expert opinions regarding "recovered memories" of childhood sexual abuse could not meet objective verifiability element for extending discovery rule. S.V. v. R.V., 933 S.W.2d 1 (Tex. 1996).

A stepparent who has been the only father a child has ever known is entitled to protection under the parental immunity doctrine. There are 3 exceptions to the doctrine: (1) intentional or malicious acts, (2) acts committed by parents in an employer-employee relationship with the child, and (3) negligent operation of an automobile. McGee v. McGee, 936 S.W.2d 360 (Tex. App. – Waco 1996, writ denied).

In order to prevail on claim for intentional infliction of emotional distress, plaintiff must prove that defendant intended to cause her emotional distress.  Brown v. Shaffer, 942 S.W.2d 162 (Tex. App. – Texarkana 1997, no writ). 

The Gender-Motivated Violence Act, 42 U.S.C. § 13981, permits recovery of compensatory and punitive damages, as well as injunctive relief, against a sexually abusive spouse. See, e.g. Ziegler v. Ziegler, 28 F. Supp. 2d 601 (E.D. Wash. 1998).

Paramours may be liable jointly and severally for fraud on the community (but does the complaining spouse have to seek satisfaction first from his or her spouse?).  Resulting trust impressed on property H gave his paramour.  Osuna v. Quintana, 993 S.W.2d 201 (Tex. App. – Corpus Christi 1999, no writ).

Appellate court reverses a summary judgment in favor of private investigator who “rented” equipment to wife to videotape husband in bedroom of marital residence.  Concurring opinion indicates that any “secret recording” is a violation of an individual’s right to privacy.  Clayton v. Richards, 47 S.W.3d 149 (Tex. App. – Texarkana 2001).

Transfer

You cannot override the venue statutes with a contract.  Leonard v. Paxson, 654 S.W.2d 440 (Tex. 1983); In re Calderon, 96 S.W.3d 711 (Tyler, 2003).

The transfer statutes apply on a per child basis.  So, it is conceivable for one court to have jurisdiction of one child and another court to have jurisdiction of his sibling(s) because they live in different counties.  If you file a motion to transfer and do not intend for it to apply to all of the children before the court, you need not file a motion to sever because the trial court must sever if it transfers as to less than all of the children.  In Re T. J. L., 97 S.W.3d 257 (Tex. App. – Houston [14th Dist.] 2002.

You can attack an adverse ruling on a motion to transfer in a SAPCR by mandamus.  In re Calderon, 96 S.W.3d 711 (Tyler, 2003).

Valuation

Trial court cannot consider hypothetical tax liability on pension and profit sharing plan. Simpson v. Simpson, 679 S.W.2d 39 (Tex. App. – Dallas 1984, no writ); Freeman v. Freeman, 497 S.W.2d 97 (Tex. App. – Houston [14 ^th  Dist.] 1973, no writ).

Trial court’s finding that country club membership was valued at going price at time of trial was upheld.  McIntyre v. McIntyre, 722 S.W.2d 533 (Tex. App. – San Antonio 1986).

Tax appraisal of house does not reflect fair market value.  IMMO Scott, (Tex. App. – Amarillo 2003).

Trial court should consider buy-sell agreements even when they are not triggered by divorce; “a majority of courts reject any attempt to apply a minority discount”. R.V.K. v. L.L.K., 103 S.W.3d 612 (Tex. App. – San Antonio 2003).

Wiretapping

Supreme Court recognizes a cause of action for wiretapping as a "willful tort" and upholds jury verdict against telephone company and its employee for wiretapping. Billings v. Atkinson, 489 S.W.2d 858 (Tex. 1973).

Eastland Court reverses $1 mil judgment against Bell based upon hearsay. Southwestern Bell Telephone Co. v. Ashley, 563 S.W.2d 637 (Tex. App. – Eastland 1978, writ ref’d, n.r.e.).

Unlike some jurisdictions, Texas does not recognize an exception to the federal wiretap statute for wiretapping one’s own residence. Turner v. PV International Corporation, 765 S.W.2d 455 (Tex. App. – Dallas 1988), writ denied per curiam, 778 S.W.2d 865 (Tex. 1989).

In Fabian v. Fabian, 765 S.W.2d 516 (Tex. App. – Austin 1989, no writ), the Austin Court ignored the decision in Turner and danced around the issue of whether wiretapping statutes apply to spouses, stating, "we do not need to reach the question whether the Texas wiretap statute applies between spouses in a divorce case or whether evidence thus distastefully obtained is barred from admission", and holding that the admission of evidence derived from a husband’s wiretapping his wife and discovering her two affairs, was cumulative and not enough error to justify reversal.

Remington v. Remington, 393 F.Supp. 898 (E.D. Penn., 1975): distinguishes Simpson because Wife used p.i. to wiretap Husband for 2 years.

Rickenbacker v. Rickenbacker, 226 S.E.2d 347 (N.C. 1976): distinguishes Simpson because the parties were separated when the wiretap occurred and the issue in this case is evidentiary (not damages).

U.S. v. Jones, 542 F.2d 661 (6 ^th  Cir. 1976): disapproves Simpson but distinguishes because the parties were separated and husband was subject to a TRO.

Anonymous v. Anonymous, 558 F.2d 677 (2 ^nd  Cir. 1977): Father’s recording conversations between daughter and estranged Wife does not violate federal statute. But, see: Williams v. Williams, 581 N.W.2d 777 (Mich. 1998), holding contrary.

SW Bell v. Ashley 563 S.W.2d 637 (Tex. App.—Eastland, 1978, writ ref’d n.r.e.): Ct. of Appeals reverses $1 mil judgment against SW Bell for lack of evidence.

Kratz v. Kratz 477 F.Supp. 463 (E.D. Penn. 1979): Court disapproves of Simpson; recognizes defenses of reasonable reliance on Simpson; not willful; didn’t know or had no reason to know.

Gill v. Willer 482 F.Supp. 776 (W.D. N.Y. 1980): Simpson and Anonymous distinguished because plaintiff in this case was not a member of defendant’s family.

Baumrind v. Ewing, 279 S.E.2d 359 (S.C. 1981): Follows Simpson; no expectation of privacy in the marital home.

Heyman v. Heyman, 548 F.Supp. 1041 (N.D. Ill. 1982): Rejects Simpson in case where spouses were estranged but living in same apartment and husband tapped wife’s private phone line.

Flynn v. Flynn, 560 F.Supp. 922 (N.D. Ohio 1983): Rejects Simpson but finds a fact issue re whether violation of federal statute was "wilful".

Pritchard v. Pritchard, 732 F.2d 372 (4 ^th  Cir. 1984): Rejects Simpson.

Lizza v. Lizza, 631 F.Supp. 529 (E.D. N.Y. 1986): Expands Simpson and refuses to recognize that a third party who calls in on a family phone has a cause of action under the federal act.

Kempf v. Kempf, 677 F.Supp. 618 (E.D. Mo. 1988): Follows Simpson.

Turner v. PV Int’l Corp., 765 S.W.2d 455 (Tex. App.—Dallas, 1988), writ denied per curiam, 778 S.W.2d 865 (Tex. 1989): Rejects and distinguishes Simpson in case by third party; prohibition against admission of tapes.

Dad can tape record child’s telephone conversations with mother.  Apter v. Ross, 781 N.E. 2d 744 (Ind. App. 2003).