INTERESTING CASES: May 6, 2015
Sallee S. Smyth
1. Sydow v. Sydow, 2015 Tex. App. LEXIS 3372 (Tex. App. – Houston [1st Dist.] April 7, 2015) (mem. opinion) (Cause No. 01-13-00511-CV)
Upon separation, H was ordered to pay the property taxes, maintenance and insurance (the 904 Expenses) on an apartment owned by some of H’s business associates who had rented the property to H on those payment terms. The trial court entered temporary orders to that effect. H paid these expenses for some period but then stopped. W remained living in the property for several additional months until evicted by the owners. Several months later the parties signed an MSA which resolved a division of their property and all SAPCR issues. The outstanding debt owing for the 904 Expenses was not referenced in the MSA or the Final Decree. The MSA stated that it was “effective immediately as a contract and superseded all temporary orders or other agreements of the parties.” The MSA provided that each party was responsible for any unidentified debts which they incurred. The Final Decree contained similar language as well as terms which absolved the parties’ of all future obligations under the temporary orders. After the divorce the owners of the property sued W to recover the past due 904 Expenses claiming breach of contract. W prevailed upon a finding that she had made no contract with the owners. H then brought an action in the divorce court seeking to clarify the terms of the property division asserting that W had incurred the 904 Expenses by living in the apartment and that the MSA superseded his obligation to pay these expenses under the temporary orders. The trial court found that W had incurred the obligations and clarified the decree to reflect that any balance owing was her obligation. W appealed arguing that the trial court impermissibly modified the division, claiming that H owed the obligation which the trial court could not thereafter allocate to her. The COA found that the language of the MSA clearly terminated any and all obligations under the temporary orders effective on the date it was signed. However, considering the effect a final decree has on temporary orders in general, the COA found that the MSA (and the decree terms) did not excuse any obligations under the temporary orders which had accrued to that date in the absence of further or specific terms to the contrary. The COA determined that H incurred the 904 Expenses under the temporary order obligations and thus any order which shifted this debt to W was void under TFC 9.007 and the appeal was dismissed for want of jurisdiction.
2. In re Young,2015 Tex. App. LEXIS 3392 (Tex. App. – Dallas April 7, 2015, orig. proceeding)(mem. opinion) (Cause No.05-15-00024-CV)
H and W divorced in 2011. The decree named them as joint managing conservators of their two children. H was designated as the parent with the right to designate the residence of the children. In 2013 H sought an injunction against W asking that she be enjoined from conducting genetic testing on the youngest child, DCY, or allowing a third party, Thompson, from asserting paternity claims to the child. In 2014 Thompson brought a suit to adjudicate parentage of DCY, claiming that he was the father. Thompson alleged in his pleadings that H was the presumed father (having been married to the mother at the time of birth and H having resided with DCY continuously for two years since birth and representing that he was the father). Even so, Thompson requested genetic testing and sought to be named SMC of the child or JMC with W. An AJ ordered genetic testing after a hearing in which no record was made. H sought de novo review. After H presented his case the court announced it did not need to hear from W and affirmed the AJ’s orders for genetic testing. H sought mandamus relief. The COA notes that generally a suit to adjudicate parentage of a child who has a presumed father must be brought within 4 years after the child’s birth. However, TFC 160.607(b)(1) provides that such a suit may be brought at any time if the court determines that the presumed father and the mother did not live together or engage in intercourse during the probable time of conception. The COA finds that a party is not entitled to genetic testing before they have established their right to maintain suit. Thus, Thompson was required to make a prima facie case that H and W did not live together or have intercourse at the probable time of conception before he had a right to genetic testing of the child. Thompson claimed that this evidence was before the AJ but there was no record of that proceeding. The COA found that de novo review begins the proceedings anew and Thompson carried the same burden to bring that evidence before the presiding judge. Although Thompson claimed he did not know he was the child’s father until shortly before the divorce, the COA found that nothing excused Thompson carrying his burden so as to allow suit after the 4 year SOL. Mandamus granted.
3. Thottam v. Joseph, 2015 Tex. App. LEXIS 3526 (Tex. App. – Houston [1st Dist.] April 9, 2015) (mem. opinion) (Cause No. 01-13-00377-CV)
H & W married in 2003 and had one child in early 2007. In late 2007 H filed for divorce. In 2012 the parties resolved all child related issues in an MSA and thereafter the property issues were referred to arbitration. On the second day of arbitration H filed a voluntary Chp. 7 petition in bankruptcy. The arbitration was stayed for several months until the stay was lifted and the arbitration was completed. The arbitrator issues his award in November 2012. H filed a motion to vacate the award which was subsequently overruled and a final judgment was entered in 2013. H filed a MNT and a motion to modify and reform the judgment on certain child related matters. The trial court denied the MNT but granted the motion to reform, referring the parties back to arbitration with the mediator who had resolved the child related issues. An arbitration award issued on those matters and the trial court signed an amended final judgment and H appealed. On appeal, H complained that the decree did not match the MSA because it specified only that child’s “residence” was restricted to specified counties unlike the MSA which provided that her “residence and domicile” was restricted. The COA determined that omission of the word “domicile” from the decree did not materially affect the W’s right to relocate within the geographic areas specified and further that the TFC references geographic restrictions in terms of :residence” only, thus the noted difference between the MSA and the final judgment was not material and not error. H also complained that the decree omitted certain periods of weekend possession during the summer. Noting that these only applied until the child began kindergarten and taking judicial notice of Maryland law for mandatory kindergarten age, the COA found the issue moot because the child was now enrolled in school and weekend summer visitation was no longer at issue. H also complained that the arbitrator exceeded his authority regarding possession and child support issues but H failed to produce a record of the arbitration proceedings or clearly direct the court to the place in the existing record where these matters could be found. Without a record or findings of fact the COA presumed the arbitrator acted properly. Finally, H challenged a number of rulings relating to the property arbitration which included complaints about the exclusion of evidence, the characterization and valuation of property, the denial of reimbursement claims and ultimately the division as made by the arbitrator. Although W fully responded to these issues, she also filed a motion to dismiss the property related issues based on the acceptance of benefits (AOB) doctrine. While the appeal was pending, the bankruptcy court approved the division of property within the state court final decree. Thereafter, the bankruptcy court authorized the Trusteeto enterinto a settlement agreement with H’s creditors, which included W. As part of the settlement, W agreed to surrender a rental property awarded to her in the divorce to the Trustee which in turn the Trustee sold with the proceeds being used towards satisfaction of obligations owing to H’s creditors. The Trustee also sold additional properties which had been awarded to H in the arbitration and used those proceeds to completely resolve all issues with H’s creditors in the bankruptcy. H appealed to federal court but his appeal was dismissed, making the bankruptcy judgment and settlement final. In her motion to dismiss, W argued that H obtained the benefits of the property division through the bankruptcy settlement. W alleged that H did not meet any of the recognized exceptions to the AOB doctrine, including economic necessity because H’s bankruptcy was “voluntary.” W also argued that the property claims had been resolved in a final judgment in bankruptcy court which precluded further review by the state appellate court. H responded to the motion with conclusory claims that his financial circumstances were “dire” and bankruptcy was required but H failed to provide evidence or direct the court to evidence in the existing record which established these claims. Further, W was not bound to concede that the property H received in the arbitration would be awarded to him again if the division were reversed and retried. As such, H could not prove that reversal would not affect these properties and thus his acceptance of them did not meet that recognized exception to the rule. The COA granted the W’s motion to dismiss all issues on appeal relating to the division. Judgment affirmed.
4. In re S.J.G., 2015 Tex. App. LEXIS 3534 (Tex. App. – Dallas April 9, 2015) (mem. opinion) (Cause No. 05-13-01351-CV)
H and W divorced in Brazos County in 2006. The parties were named JMC and W had the right to designate the children’s primary residence. W remarried and moved with the children to OK in 2007. In 2011 H moved to Dallas County. H filed a MTM custody and child support in Brazos County and requested a transfer of the proceedings to Dallas County. W filed a motion asking the Brazos County court to decline jurisdiction over the custody suit as Brazos County was an inconvenient forum and she asked the Brazos County court to defer jurisdiction to OK. The Brazos County court transferred the c/s case to Dallas County and abated the custody suit to await commencement of a custody suit in OK. W then filed a suit to register the divorce decree in OK. Within a week of the transfer to Dallas County, H filed a motion there asking the Dallas court to set aside the Brazos County order. H’s motion was denied. The c/s modification case was tried in Dallas and that court issued a final order modifying support and awarding W $15K in attorney’s fees against H. H appealed, claiming that it was error for the Dallas court not to set aside the Brazos County order during the 30 day plenary period after the order because the Brazos County court lacked subject matter jurisdiction to retain custody issue while transferring only c/s, claiming the Brazos County court had a mandatory duty to transfer the entire case under TFC Chp. 155. H also challenged the award of attorney’s fees and the failure of the Dallas court to communicate with the OK court under the UCCJEA. The COA first determined that there was no error in failing to set aside the Brazos County order because a court does not have the authority to set aside an order issued by another court of equal jurisdiction unless that order is void. The COA found that to do otherwise would permit collateral attacks on orders and judgments. The COA found that the Brazos court had jurisdiction over the parties and subject matter jurisdiction over the issues when it issued the order and thus the order was not void. As such the Dallas court was correct in refusing to set it aside. The COA also affirmed the fee award dismissing H’s claim that fees in a modification suit may only be awarded under TFC 156.005 if the claims are frivolous. The COA held that fees in a non-enforcement modification suit may generally be awarded under TFC 106.002 in addition to those that may be awarded under Chp. 156 when the requisite findings are made. Finally the COA found that the Dallas court had no obligation to communicate with the OK court under the UCCJEA because there were no custody issues pending before the Dallas Court. Judgment affirmed.
5. Castillon v. Morgan,2015 Tex. App. LEXIS 3640(Tex. App. – Dallas April 14, 2015) (mem. opinion) (Cause No. 05-13-00872-CV)
During trial of the parties’ divorce, H offered statements of several financial accounts into evidence to support his separate property claims. W’s counsel objected to the admission of the statements based on hearsay and the trial court excluded them. Ultimately the court characterized all of the accounts as community property and divided the estate. H appealed the evidentiary ruling, the characterization and division as well as a finding by the trial court that the parties had been informally married for more than a year before their formal marriage. In addressing the evidentiary issue the COA notes that records of a regularly conducted business activity are hearsay but they can be admitted under a hearsay objection when a qualified witness testifies that (1) they were made and kept in the regular course of business; (2) it was a regular practice of the business to make the record; (3) they were made at or near the time of the event being recorded and (4) they were made by a person with knowledge who was acting in the regular course of business. TRE 803(6). The witness laying the predicate does not need to be the creator of the record or even have personal knowledge of its contents. The witness need only have personal knowledge of the manner in which the record was prepared. The COA further notes that at least two appellate courts have held that documents received by a party from an entity may qualify as admissible business records if (1) the records are incorporated and kept in the court of the party’s business; (2) the party typically relies upon the accuracy of their contents and (3) the circumstances otherwise indicate the documents trustworthiness. 429 SW3 125 (Dallas) and 321 SW3 235 (Houston 1st). Ultimately the COA found that even if admission of the records in this case was error, it was harmless because the H never attempted to trace the funds added to or withdrawn from the balance in the accounts existing at the time of marriage and thus the trial court could presume to characterize the accounts as community property. All other issues overruled and judgment affirmed. COMMENT: I included this case because I have had several calls in the last few months regarding the admission of bank records through a party in the face of a hearsay challenge. Hopefully this case will provide some answers.
6. Ashfaq v. Ashfaq, 2015 Tex. App. LEXIS 4305 (Tex. App. – Houston [1st Dist.] April 28, 2015) (Cause No. 01-14-00329-CV)
H and W were married in Pakistan in 2007. After several months, H returned to his home in Ft. Worth TX. W remained in Pakistan until 2009 when she was granted a Visa to join H in the US. Once in TX, H and W lived together in FW. In late 2009 the parties went to Pakistan for a family wedding. When they arrived H asked W’s parents to take her to their home. According to H, 8 days later he announced his decision to divorce, notified the Union Council that he had divorced his wife by performing talaq, had a decree prepared and delivered it to W at her parent’s house. W acknowledged that her brother received notice of the divorce before it became final. H returned to the US. W returned to the US in April 2010 and took up residence in Houston. In September 2010 H went to Pakistan and married another woman who was thereafter admitted to the US where she lived with H in FW. After returning to the US in April 2010, W had no contact with H until she filed for divorce in October 2011 in Harris County. H responded to the suit and asked that the divorce be dismissed claiming that the parties’ had already been divorced in Pakistan in 2009. At trial, H offered the testimony of an expert witness on Pakistani family law who explained the procedural requirements for securing a divorce. A translated version of relevant Pakistani law was admitted in evidence, which document explained the procedures for obtaining a valid divorce under a Pakistani Ordinance, including “talaq” (H pronouncing “I divorce you”) three times as well as various other notification requirements and the passage of a specified period of time allowing for reconciliation. The expert testified that H had met all of the proscribed requirements for a valid Pakistani divorce. The court ruled that the Pakistani divorce was valid, dismissed that portion of the suit and treated the property division like a post-divorce division. W appealed only that part of the judgment finding the Pakistani divorce valid. The COA initially noted that states are not required to give full faith and credit to foreign judgments and that dismissal based on comity is a matter of discretion. The COA found that granting comity to a foreign judgment in the absence of due process would be an abuse of discretion. In response to W’s claim that TX had exclusive authority to grant a divorce because the parties were both domiciled here at the time of the Pakistani divorce, the COA found that this was not relevant to a question of whether the Pakistani divorce was valid if H met all the requirements for divorce under Pakistani law. According to H’s expert, Pakistani citizens are considered residents in Pakistan for divorce purposes even if they are living in another country so long as they have not relinquished there citizenship. W did not present any evidence to the contrary and there was no dispute that both H and W were Pakistani citizens so the COA concluded it was not an abuse of discretion for the TX court to determine that Pakistan had proper jurisdiction to grant a divorce. W also claimed that the foreign divorce should not be recognized on public policy grounds. The COA found that H secured the divorce under the relevant Ordinance which provided notice requirements above and beyond the traditional “talaq” and the undisputed evidence established that W received notice before the Pakistani divorce became final thus she received due process in that proceeding. The COA further noted that the US state department considers a “talaq” performed in conjunction with the Ordinance laws as valid proof of a marriage status for immigration purposes, which the COA presumed the State Department had done in granting a visa to H’s current wife. Concluding that the testimony of H’s expert was not controverted and established the validity of the divorce, the COA affirmed the judgment.