/NTERESTING CASES: April 4, 2018



Sallee S. Smyth

  1. Mathis v. Mathis, 2018 Tex. App. LEXIS 1936 (Tex. App. – Tyler, March 15, 2018) (mem. opinion) (Cause No. 12-17-00079-CV)

H and W married in 1999 and had two children.  H worked for McDonalds for 17 years until 2008 when he was incarcerated for criminal activities stemming from a substance abuse problem.  H was released briefly from incarceration in 2014 but was convicted again in November 2017 and sentenced to another 17 years in prison.  W filed for divorce when H was convicted the second time and H was incarcerated when the case went to trial.  Between incarcerations, H was injured and recovered a personal injury settlement of approximately $900K which netted him about $450K.  By the time the case was tried $300K remained in his attorneys IOLTA account with sums having been used to pay household expenses and purchase a car.  W requested a disproportionate division of the community which consisted of a house, vehicles, personal property and a small retirement account held by W.  She further requested child support and spousal support.  The trial court awarded W most of the community estate except H’s personal property and confirmed another residence to H as his separate property.  The court ordered child support based on minimum wage ($224/mo) and ordered H to pay W spousal support of $1200/month for 3 years.  H appealed.  The COA overruled H’s issue regarding division of the community estate determining H’s fault in the breakup and his separate assets justified the division.  Regarding spousal support however the court construed the statutes within Chapter 8 as justifying the award of spousal maintenance only when the obligor has future income from sources identified within the statutes.  The COA notes the statutes contemplate that spousal maintenance will be paid from future income, not from existing property.  Here W admitted that H did not earn an income while incarcerated.  Further, there was no evidence as to when H might be paroled and/or what his earning potential might be when that occurred.  The COA recognized that although H had been awarded the entirety of his remaining personal injury settlement, this was existing property and could not be transformed into any of the categories of future income specified in the statutes merely because he continued to possess it.  Simply put the COA finds that the statutes only allow an award of spousal maintenance (if other prerequisites have been met) from “new money” the obligor will earn after the divorce, not existing money then in possession.  The COA modified the final decree to delete the award of spousal maintenance and otherwise affirmed the decree.

  1. Willmore v. Alcover, 2018 Tex. App. LEXIS 2044 (Tex. App. – Corpus Christi*, March 22, 2018) (mem. opinion) (Cause No. 13-16-00180-CV) (*transferred from Houston 1st District under a docket equalization order which gives case precedence in courts within Houston COA district)

H and W divorced in 2015 pursuant to a final decree entered after a bench trial.  H appealed primarily challenging the trial court’s rulings excluding his inventory and appraisement and evidence contrary to W’s inventory.  H filed his I&A on the day of trial and W objected because it was due to be exchanged under Harris County local rules 10 days prior to trial.  W argued that not only should H’s inventory be excluded but likewise any evidence he sought to offer contrary to her I&A.  The court specifically did not rule on W’s objection.  The issue resurfaced on the second day of trial when H sought to cross-examine W challenging her testimony regarding certain property.  W objected again and the trial court sustained the objection.  Thereafter H did not make an offer of proof or secure any more specific ruling on W’s motion to exclude his evidence based on his failure to timely file an I&A.  H challenged the exclusion on appeal but the COA determined that H had not properly preserved the issue by failing to obtain a more precise ruling on W’s motion and further by failing to make an offer of proof on what his evidence would have been.  The COA’s decision on preservation controlled most of H’s other issues on appeal.  Apart from this, H challenged the trial court’s decision which denied his claims of fraud as against W.  H alleged that W had secretly deposited all of her paychecks from her teaching job into a separate account for the entire duration of their 7 year marriage without his knowledge or consent.  What makes this case interesting is the COA’s delineation of the elements that H was required to establish in order to prevail.  More often than not, family lawyers are faced with case law defining a six element common law actual fraud claim that can sometimes be hard to fit into a family law fact pattern.  This opinion offers a very good 8 element fraud claim that seems more in line with what we face.  The elements specified by the COA are (1) W failed to disclose the separate account; (2) W had a duty to disclose the separate account; (3) the separate account was material; (4) W knew that H was ignorant of the separate account and H did not have an equal opportunity to discover the separate account; (5) W was deliberately silent when she had a duty to speak; (6) by failing to disclose the separate account, W intended to induce H to take some action or refrain from acting; (7) H relied on W’s nondisclosure; and (8) H was injured as a result of acting without that knowledge.  On a procedural level, the COA ultimately found that H failed to meet his burden of proof in establishing fraud by W.  The COA ruled that H attempted to shift the burden by alleging that there was no evidence indicating that he knew of the account instead of offering affirmative evidence that proved the elements of his case.  Ultimately the COA affirmed the trial court’s division of property.

2018-05-18T14:22:59-05:00 April 3rd, 2018|SideFeatured-Home|