INTERESTING CASES: June 1, 2016

Sallee S. Smyth

1. Assoun v. Gustafson, 2016 Tex. App. LEXIS 4674 (Tex. App. – Dallas May 3, 2016) (Cause No. 05-14-01463-CV)

H and W married in 1995 and had two children. In 1997 the parties were divorced in London. The English order obligated H to pay W alimony in the amount of $132,000 per year until she remarried or until further order of the court. W subsequently moved to Collin County, Texas and began a relationship with John. In 2013 the London court entered an order modifying the alimony payments, increasing them to $380,000 per year. W brought proceedings to enforce these payments in New York and then in Texas. In 2014 H filed a petition for declaratory relief against W and John, seeking a declaration that they were married, alleging common law fraud and requesting attorneys fees. W filed a counter claim seeking her own declaratory relief that she and John were not married. W filed a motion for partial summary judgment. John, named as a part in H’s suit, filed a pleading joining in W’s summary judgment motion and adopting all of W’s summary judgment evidence. The sole ground upon which W sought summary judgment was her claim that she and John had never agreed to be married and that their direct evidence denying any such agreement overcame, as a matter of law, any circumstantial evidence that H might produce to support an agreement as authorized by case law interpreting TFC 2.401. W and John offered as SJ evidence their respective tax returns showing single status, insurance applications showing they were unmarried, a homestead claim as single. The both executed affidavits stating they were not married, had never been married to one another and had never agreed to be married. They argued that their evidence conclusively negated any fact question as to the existence of an agreement to be married. H produced evidence that W and John live together, W wears what appears to be a wedding ring in public, one of John’s children characterized W as her stepmom in a social media posting and evidence that during their travels, W and John have stayed in hotels under the name Mr. & Mrs. After a hearing the trial court granted W’s MSJ. H nonsuited the balance of his claims, creating a final order and appealed. The majority opinion agreed with W’s argument that H’s circumstantial evidence of a common-law marriage was insufficient to create a genuine fact issue negating W and John’s direct evidence as to the first element and affirmed the SJ order. (The COA likewise affirmed two other issues re: discovery and fees). Dissenting, Justice Whitehill determines that the very nature of the statute and the cases which permit circumstantial evidence allow circumstantial evidence to establish a common law marriage and that H offered sufficient evidence to create a genuine issue of material fact that precluded SJ. Justice Whitehill acknowledged that third parties are permitted to challenge and/or seek affirmative declarations of marital status and disagreed with the notion that the alleged couple could simply deny (as direct evidence) that an agreement existed in order to overcome all other circumstantial evidence as a matter of law. The dissent notes that Wife and John offered no evidence establishing an impediment to their potential common law marriage, suggesting that a fact finder should be allowed to judge the evidence overall, on both sides and that summary judgment was improper.

2. In re Baker, 2016 Tex. App. LEXIS 4735 (Tex. App. – Houston [14th Dist.] May 5, 2016, orig. proceeding) (Cause No. 14-15-00101-CV)

During 2012 divorce proceedings, H and W signed a waiver of appeal to the presiding court and their case was tried to the AJ. W appealed from the trial court’s order. On appeal the divorce was affirmed but the case was remanded for a new trial on issues of custody, division of property and W’s tort claims. On remand, W filed a jury demand more than 30 days prior to the newly scheduled trial. Upon notice of trial W also filed an objection to trial before the AJ. At a status conference the trial court denied W’s jury demand and ordered the case tried by the AJ, finding that the case was “in trial” and W’s requests were untimely. W sought mandamus relief. The COA determined that upon remand, W was entitled to demand a jury for the new trial so long as she complied with TRCP 216. Further, the COA held that W’s prior waiver of a de novo appeal to the AJ was not applicable in the remand proceedings and that TFC 201.005(c) mandates that the referring court will preside at a jury trial when an objection to the AJ is timely filed. Mandamus granted.

3. In re Paul, 2016 Tex. App. LEXIS 4766 (Tex. App. – Waco May 5, 2016, orig. proceeding) (mem. opinion) (Cause No. 10-16-00004-CV)

H and W (although not ultimately) met and began dating in 2012. W, a Texas resident, alleges that she began living with H at one of his residences in Johnson County, Texas. H was a full time resident of OK but owned property in Texas. W claimed that she and H entered into a common law marriage and when she discovered she was pregnant, she identified H as the father. H filed a suit to adjudicate parentage in Johnson County, Texas in 2015. Several months later, in a separate suit, H filed for injunctive relief against W for her improper use of his personal property. W responded to this suit with a counter petition alleging a common-law marriage and seeking a divorce and temporary orders. H moved to consolidate all proceedings which was granted. The court conducted a hearing for W to offer evidence in support of a prima facie showing of common law marriage. During the hearing W testified that she lived in Tarrant County with her mother at the time suit was filed. H moved to dismiss her divorce action based on W’s failure to meet the residency requirements but the motion was denied. Thereafter the court issued temporary orders finding that a prima facie showing had been made and ordered H to pay $425,000 in interim attorneys fees. H sought mandamus relief. The COA determined that the residency requirements, although not jurisdictional, are mandatory. Residence must be established as of the date the suit for divorce is filed and it is not enough to acquire the necessary 90 day county requirement while the suit moves forward. The undisputed evidence established that W did not live in Johnson County on the date the divorce action was filed or within 90 days prior to it and since H was a resident of OK, the court abused its discretion in allowing the divorce action to proceed. Mandamus granted.

4. Kite v. King, 2016 Tex. App. LEXIS 5007 (Tex. App. – Amarillo May 11, 2016) (Cause No. 07-15-00324-CV)

During marriage H transferred a community property residence in Colorado into a residential trust with the aid and advice of counsel. W signed a deed transferring the property to the H first but claimed she understood it was already his separate property since his name was the only one on the deed and no one advised her differently. During subsequent divorce proceedings, W raised claims of fraud concerning this transfer and sought reconstitution of the marital estate. The parties settled their dispute and signed an agreed final decree which did not adjudicate the fraud claims. After the divorce W filed suit against the law firm handling the property transfer for malpractice, fraud and breach of fiduciary duty. The firm sought summary judgment alleging that W’s recovery was limited to relief under TFC 7.009 within the divorce proceeding itself and was now barred by res judicata. The trial court granted SJ and W appealed. The COA found that a third party cannot be held liable in tort when community property is taken by one of the spouses and the exclusive remedy available to a spouse in these circumstances is pursuing a just and right division of the community estate which may include reconstitution under TFC 7.009. The COA then considered whether W’s claims against the lawyer and firm were themselves considered community or separate property, determining that because W sought to recover damages on behalf of the community estate, her claims were community in character and those claims against the firm had to be included and determined within the divorce suit itself. Summary judgment affirmed.

5. In re Phillips, Tex. LEXIS 371 (Tex. Sup. Ct. - May 13, 2016) (Cause No. 14-0797)

Phillips was convicted of burglary and sexual assault and sentenced to 30 year sentences for each to be served concurrently in 1982. He pled guilty to additional charges to avoid trial and sentencing in those matters. Phillips was never told by the prosecution that one of the victims had initially identified another person for the crime. In 2001 a law was passed allowing convicted criminals to seek DNA testing of evidence that was unavailable when they were originally convicted. Phillips moved for such testing immediately but prosecutors opposed the request until 2007. Ultimately Phillips prevailed and was found innocent and all charges were dismissed. In 2009 Phillips applied to the Comptroller for relief under the Tim Cole Act which entitles a person wrongfully imprisoned to compensation from the state for the time they were incarcerated and for child support owed, but not paid, plus interest, while imprisoned. Phillips and the Comptroller agreed that he was entitled to a lump sum payment of $2 million. Phillips also sought payment for child support he owed under a 1978 Arkansas decree obligating Phillips to pay M $100.00 per month. The Comptroller confirmed that Phillips had made only two payments. Arkansas refused to accept payments because there was no open enforcement proceeding pending. Then M registered the order in TX and sued Phillips for enforcement. At a default hearing M put on evidence of arrearages and interest totaling $304,861 (with interest at 10% compounded monthly!) Phillips asked to be paid $246,123 which he determined was the portion of the arrearage judgment accumulated during the period of his incarceration. The Comptroller responded that he had exclusive authority to determine the compensation owed which he calculated to be $25,125.00 under Arkansas law. Phillips petitioned the Texas Supreme Court to direct the Comptroller to make payment in the larger amount. The Supreme Court determined that the Comptroller’s authority under the statute is exclusive, ministerial and subject to review. Further the Court finds that the Comptroller’s role is not to determine the proper amount of child support arrearages as between the parents, but the proper amount of compensation for child support arrearages, distinguishing that the former is what one parent owes the other but the latter is what the state owes the claimant. The Court held that the Comptroller is not bound by a child support enforcement judgment rendered by a court but has the exclusive authority to consider the applicable law regarding child support arrearages and make their own mathematic calculation as to the proper amount of compensation under the statute. Finding that the Comptroller did not make a correct calculation relating to interest, the Supreme directed recalculation in accordance with the applicable statutes.

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