INTERESTING CASES: August 5, 2020

Sallee S. Smyth

  1. Rubio v. Rubio, 2020 Tex. App. LEXIS 5397 (Tex. App. – Corpus Christi July 16, 2020) (mem. op.) (Cause No. 13-17-00682-CV)

H and W married in 1976. In 1986 they began constructing a home at a specified address in Brownsville, Texas. Construction was completed in 1988 and the lived in the home with their 3 children until they divorced in 1990. The parties agreed to all matters in the divorce, including the property division specified in a Final Decree that awarded W the 3.5 acres at the specified residence address along with all improvements. The Decree further specified that H was awarded “the 10 acres located in Brownsville, Cameron County, Texas.” The Decree divested each party of all right and title to the property awarded to the other and obligated them to execute transfer documents. Based on various disputes as to the property description and/or ownership of the property, H filed a suit to quiet title in 2016 and sought declaratory relief. Neither party disputed that the property description of the residence awarded to W within the decree was incorrect. As it turned out, the house was on a .5 acre tract (Tract A) and the garage was on a separate 2.4 acre tract (Tract B). (The tracts upon which the residence was located were completely separate and unrelated to the 10 acre tract awarded to H in the decree). The evidence at trial revealed that neither H or W possessed legal title to either Tract A or B at the time of the divorce. These tracts were owned separately by two of H’s aunts. However, W was able to obtain a deed from the aunt owing Tract A within 3 months after the divorce. Some 7 years after the divorce, the other aunt who owned Tract B deeded it to H. There was conflicting testimony about the timing of various improvements to the property, including the garage, as occurring before or after the divorce. W established that she acquired a deed to Tract A. She further testified that at the time of the divorce, she firmly believed that the parties owned the property upon which they built the residence. She argued that both tracts A and B were commonly known by the specified address awarded to her in the Final Decree. At the conclusion of trial the court denied H’s request to quiet title and declared that W was the sole and legal owner of Tracts A and B. H appealed. H argued that the court was without authority to award property upon divorce which legally belonged to a third party. The COA found that a divorce court has the authority to divide “equitably” owned community property as part of the division of the estate, even if the parties do no possess legal title to the property. The COA relies on two other holdings (804 SW2 623 from Texarkana and 2010 TAL 5417 from Houston 14th] holding that the court may divided an equitable interest in real property and further notes that TFC 4.001(2) defines property in the context of marital property agreements to include legal or equitable interests in real property. The COA found that the parties’ acquired equitable title to Tract A and B before the divorce based on evidence establishing some payments on the property, their possession of the property and the improvements made on it. The COA further determined that because the parties had obtained equitable title and the Final Decree awarded the specified address to W, W’s title was superior to H’s claim of legal title as obtained from his aunt more than 7 years after the divorce. Judgment affirmed.

  1. Kahlig v. Kahlig, 2020 Tex. App. LEXIS 5420 (Tex. App. – Houston [1st] July 16, 2020) (mem. op.) (Cause No. 01-18-01119-CV)

M and F divorced in 1980 and at that time F was ordered to pay child support of $250.00 per month for the parties only child, S. In 2011 M initiated a suit to enforce the child support payments however she died before the matter could be finally litigated. In October 2017, the parties child, S, now 41 years old, filed an application for a judicial writ of withholding (Writ of WH) on F, attaching all matters to establish child support arrearages in the amount of approximately $229,000. F filed a motion to stay the writ and the case proceeded to trial. S argued that F failed to timely file his motion to stay and the trial court agreed, granting S relief through a child support lien and awarding S attorneys fees. F appealed. F argued that the trial court lacked subject matter jurisdiction because enforcement was sought more than 10 years after the child support obligation terminated. The COA found that the 10 years SOL under TFC 157.263 applies only when a party seeks a cumulative money judgment. In this case, S did not seek a cumulative money judgment, she sought a Writ of WH which may be pursued at any time until all child support had been paid. F further argued that TFC 154.013 (providing that child support does not terminate upon the death of the obligee but continues as an obligation to the child), enacted in 2001, cannot be retroactively applied. The COA observed that the constitutional limitations on retroactive laws applies when those laws crate “new obligations” and in this case F’s obligation to pay child support was not new, it had existed since 1980 and the Writ of WH was just one of several means to enforce it. F further argued that S lacked standing to pursue the enforcement because she was not the child support obligee. The COA determined that an “obligee” is defined as a person entitled to receive child support payments (TFC 101.021) and S, as the parties’ only child, was the only person entitled to receive the child support. The COA agreed with the trial court that F failed to file his motion to stay within the time required and thus he was prohibited from offering evidence in support of affirmative defenses. The COA further affirmed the award of attorneys fees, determining that TFC 157.167 authorizes fees when the court finds that the obligor has failed to make payments and it does not limit those fees to specific enforcement remedies. Although there is no specific fee provision when a Writ of WH is issued, the COA notes that TFC 157.323 allows fees for child support liens. Judgment affirmed.

  1. F. v. J.F., 2020 Tex. App. LEXIS 5748 (Tex. App. – Fort Worth July 23, 2020) (mem. op.) (Cause No. 02-19-00029-CV)

H and W married in 2000 and had two children. In 2016 H filed for divorce and W filed a counter petition. Both parties sought an equitable division of the estate and custody of the children. W also sought spousal maintenance. After trial, the court awarded W spousal maintenance of $ 1500/month for a period of three years, based on a finding that she had an incapacitating mental illness that prevented her from working to meet her minimum reasonable needs. The trial court further divided the property, awarding the marital home and a business interest to H at specified values. H appealed. W argued initially that H had accepted the benefits of the judgment requiring his appeal to be dismissed. W claimed that H had taken various actions with regard to the business interest which reduced its value whereby she would be prejudiced if the division was reversed and remanded. The COA determined that H had taken action in his control of the business due to financial setbacks, however the COA determined that based on the facts and circumstances, the business only had value if operated by H and thus there would be no circumstances upon remand supporting an award of the business to W. As such, the H’s actions in accepting benefits of the judgment did not prejudice W. Regarding the spousal maintenance award, the COA found that while evidence from several witnesses suggested that W suffered from a possible borderline personality disorder and other unspecified mental health issues, there was no evidence demonstrating a causal connection between such disability and W’s claim that she was unable to work and earn income to meet her minimum reasonable needs. W claimed she had tried to apply for jobs but was unsuccessful. H asserted that W had not looked for anything long term nor was she enrolled in school to acquire new skills. The evidence established that W had been employed in the past despite her condition. Determining that there was no evidence of a link between W’s disability and her inability to work and earn income, the COA reversed and rendered that W take nothing on her spousal support claim. H also challenged the trial court’s valuation of the business and residence awarded to him, asserting that the trial court improperly valued the business using a gross and not a net number and failed to discount the value of the residence by the amount of property taxes he was required to pay during the year of divorce. The COA found no abuse of discretion where H made a judicial admission as to the value of the business and other factors supported the trial court’s value. Further, the COA found no abuse of discretion in refusing to discount the residence value where it was likely that the property tax obligation accrued well after W vacated the property and the divorce was close to being finalized, making it equitable that H be charged with the property tax obligation on the property he was awarded. Division of property affirmed.

  1. Rahman v. Parvin, 2020 Tex. App. LEXIS 5714 (Tex. App. – Houston [1st] July 23, 2020) (mem. op.) (Cause No. 01-19-502-CV)

H and W were both born in Bangledesh but later moved to the US. The met in 2003 when their marriage was arranged by their families. The married that year in New York. The had a child in 2009, moved to Texas in 2011 and had another child in 2012. In 2014, H and W purchased a residence and they were the only persons named on the Deed. In 2017, H told W he had decided to sell the house and he asked W to go to the bank with him to sign paperwork allowing his brother. M, authority to sell the residence since the family was going to be in Europe for a lengthy trip. H gave W the document before they got to the bank (which was a Deed to M) and W stated she did not understand. He explained that the document gave M the right to sell the house in their absence. She believed him and signed the document which effectively deeded the residence to F’s brother without consideration. The parties continued to reside in the property but several months later, H asked W to leave the residence because he suspected she had been unfaithful. He told her she could not stay because she owned no interest in the property. W moved out and went to a women’s shelter based on her fears of abuse by H, which she claimed had happened several times during the marriage. W filed for divorce and named H’s brother, M, as a party. As part of her requested relief, she asserted that H had fraudulently induced her into signing the deed and she asked that it be set aside. At trial, H claimed that his own father and brother had invested in the purchase of the residence and that it was a “family residence.” He denied any fraud or wrongdoing. The trial court found in favor of the W, set aside the deed, ordered the residence sold with 60% of the proceeds awarded to W and 40% awarded to H. H appealed. The COA found that the evidence was sufficient to support all elements of fraudulent inducement, including a false representation that was intended to be relied upon and was in fact relied upon, that being H’s claim that the document only allowed M to sell the house when in fact it deeded ownership to M and W relied upon that lie to her detriment. The COA also determined that the transaction was marked with various “badges of fraud” which evidenced a fraudulent intent. These included (1) transfer of the property to a family member; (2) retaining possession of the property after transfer and (3) inadequate consideration for the transfer. M, the brother, argued on appeal that the trial court erred in determining that the residence was community property because there was evidence that he and the H’s father “invested” in the purchase. The COA found that because the residence was purchased during marriage by H and W, it was presumed to be community property, and M’s brief on appeal did not cite to or otherwise explain what that evidence might be to overcome the presumption. Additional arguments regarding judicial bias were rejected. Judgment affirmed.

  1. L. v. S.L., 2020 Tex. App. LEXIS 6002 (Tex. App. – Fort Worth July 30, 2020) (mem. op.) (Cause No. 02-19-00017-CV)

M and F married in 2002 and had one child in 2007. At all time M worked as a registered nurse in the pediatric intensive care unit of a local hospital. M worked weekends while F cared for the child and M cared for the child during the week while F worked. M’s income was always substantially larger than F’s. M had an affair and then filed for divorce. Both parties sought to be named primary JMC. M did not plead for child support, F did. F also sought a disproportionate division of property. After a bench trial the court named the parties JMC, gave M the exclusive right of domicile, awarded F substantial periods of possession, ordered M to pay F $1000/month in child support and divided the parties estate in F’s favor. M appealed. The issues concerning M’s challenge to the division of property are unremarkable. I include this case to note that this is the second appellate decision within the last 8 months to affirm an award of child support payable by the primary JMC to the other JMC. In November 2019, the Dallas COA upheld such an award, finding that the purpose of child support is to ensure that the child has adequate resources for support at the residence of both parents. In re A.R.W., 2019 Tex. App. LEXIS 10280 (Tex. App. – Dallas November 26, 2019) (Cause No. 05-18-00201-CV) (mem. op.). Here, the COA noted that M had always earned more than F, F’s expenses were higher than his income, F needed 5 years to go back to college to be in a position to earn more, M knew F was financially strapped, M paid all of F’s bills while the case was pending, F could not afford special activities with the child and M refused to pay for them, M wanted F to have more than an SPO with the child and M wanted the child to have a comparable lifestyle in both homes. Based on this evidence the COA affirmed the child support award as well as the balance of the decree, overruling all of M’s other issues.

  1. Seltz v. Seltz, 2020 Tex. App. LEXIS 5837 (Tex. App. – Houston [1st] July 28, 2020) (Cause No. 01-19-00787-CV)

H and W married in March 2014. Prior to their marriage, W purchased a residence on Autumn Lane. Less than one month after the marriage, W executed a special warranty deed, deeding the property to both H and W. In October 2015 the parties separated. In November of that year, H sent W an email which stated “Seltz Warranty Deed” in the subject line and read “For your records.” Attached to the email was a fully executed Warranty Deed, signed by Brian, deeding his 50% interest in the Autumn Lane property back to W. A few days later he sent a second email advising W that the earlier deed had not been filed and that it had now been destroyed. W filed for divorce several months later. During the suit, W filed a MSJ seeking confirmation of the Autumn Lane residence as her s/p. W attached the Deed fully executed by H as well as the prior documents showing the residence was purchased before marriage and then an interest had been deeded to H after marriage. In an amended filing, W also included H’s email sending her the signed and notarized Deed conveying his interest back to her. H responded with an affidavit stating it was not his intent to “gift” his interest to W, asserting that he had only given her the deed conditionally to prove that he was willing to do anything to save the marriage and that if W would attempt to reconcile he would complete the gift to her at that time. The trial court granted W’s MSJ (as well as 2 others regarding a boat and an IRA) and tried the remaining issues. The SJ rulings were merged into a final decree and H appealed. Regarding the Autumn Lane property, H argued that there was a genuine issue of material fact as to his “intent.” The COA noted that when one spouse deeds property to the other a gift is presumed and that this presumption can be overcome by evidence of fraud, accident or mistake. The COA further notes that a spouse may not offer parole evidence to contradict the express recitals within the deed without first tendering evidence of fraud, accident or mistake. In this case, H did not suggest or offer evidence that his execution of the November 2015 was procured by any such means. As such, H was not permitted to offer parole evidence of his intentions. The COA found that the delivery of the deed by H to W without expressing any conditions operated as an immediate transfer of H’s interest in the property back to W as a gift. H’s issues challenging the trial court’s award of fees to W were also overruled and the final decree was fully affirmed.