Sallee S. Smyth

  1. Garcia v. Ruiz, 2019 Tex. App. LEXIS 4745 (Tex. App. – Houston [1st] June 11, 2019) (mem. op.) (Cause No. 01-17-00969-CV)

H and W married in 2000.  In 2011, H executed a lease on a 32 acre tract of land which included a house, a barn and a stocked pond.  The lease was for a term of 10 years and the owner testified that he would allow H to extend the lease beyond that so long as he paid the monthly rent.  H assisted the owner in making improvements to the property and used it as a weekend getaway.  The owner testified that if H wanted to purchase the land, he had agreed to sell it to him for $100K less than FMV.  H subsequently filed for divorce.  W argued that the lease was an asset to be valued and divided.  She suggested that in reality, H owned the property but he and the owner were disguising his interest as a lease to avoid H’s $430K IRS debt.  The trial court signed a final order that did not address the leasehold interest in any manner but did assign the tax liability to H.  W appealed.  On appeal, W argued that the leasehold interest was community property, acquired during marriage, and that it had not been valued or divided, making the division of property an abuse of discretion.  The COA agreed that a leasehold interest in property is subject to division upon divorce and if acquired during marriage is community in character.  The COA however found that there was no evidence as to the value of the interest and as such the COA could not determine whether it was an asset or a debt or whether its value, regardless, impacted the division of property.  Although there was evidence that the rent was $1600/month, the COA noted that there was nothing to suggest if this was FMV or possibly a below market rate since the owner was willing to sell it for less than FMV.  Taking all into consideration, the COA determines that TFC 7.001 obligates the trial to divide all the community estate and therefore it was error to ignore the leasehold interest.  Further, since there was no evidence of FMV, remand was required.

  1. Schultz v. Schultz, 2019 Tex. App. LEXIS 5039 (Tex. App. – Dallas June 18, 2019) (mem. op.) (Cause No. 05-18-00876-CV)

Within the parties’ divorce decree, the court ordered that the marital residence be listed for sale by a date certain and that it should be sold at a price mutually agreed upon by H and W.  The decree further provided that if the property was not timely listed then a designated receiver was to be appointed.  When the house was not timely listed, the trial court signed an order appointing the designated received in a post-divorce proceeding.  The order appointing the receiver authorized him to sell the property at a reasonable price in his discretion.  As the evidence would develop, H was not kept apprised of offers, the receiver ignored interest in the property and he ultimately did not accept a $$965K offer but instead accepted an offer from the W herself at $900K.  The receiver sought approval of the sale from the court and after an evidentiary hearing in which H objected and claimed the receivership order modified his property division, the trial court approved the sale.  H appealed.  The COA determined that the decree was not ambiguous.  It was clear that the property was to be sold at a price mutually agreed upon by the parties.  W argued that this became moot once the receiver was appointed but the COA disagreed, stating that the price term was clear and it became even more significant in circumstances where W was the buyer.  The COA found that the receivership order effectively modified the property division which in turn was void under Chapter 9.  Order for receiver vacated and matter remanded to the trial court.

  1. Quimby v. Quimby, 2019 Tex. App. LEXIS 5110 (Tex. App. – Houston [1st] June 20, 2019) (mem. op.) (Cause No. 01-18-00705-CV)

H and W were married in Washington State.  Both parties were in the military.  They had two children.  In 2016 they separated and H moved to Mississippi.  W retired and moved with the children to Florida.  In 2017 H filed for divorce in Galveston County, TX claiming TX as his place of domicile and Galveston County as his residence despite being stationed in MS with the military.  W filed for legal separation in Florida.  In TX, W filed a special appearance challenging personal jurisdiction and a plea to the jurisdiction regarding the joined SAPCR.  W claimed she had been to TX once to meet H’s parents and that the children had never been to TX.  After a hearing on these matters and temporary orders the AJ denied both of W’s pleas and made recommendations as to temporary custody and support.  W sought a de novo hearing and the presiding judge granted both the special appearance and the plea to the jurisdiction, however the trial court signed temporary orders in accordance with the AJ recommendations.  W filed a motion to vacate the TO in light of the jurisdictional rulings and she further asked the court to dismiss the case entirely to allow matters to proceed in FLA.  The trial court thereafter granted W’s motion and dismissed the case.  H appealed.  The COA held that matters of personal jurisdiction must be determined based on evidence which shows that the challenging party did not purposefully avail themselves of the benefits and protections under TX law in order to be subject to personal jurisdiction here.  In this case, there was no dispute that W had only been to TX once to meet H’s parents before marriage.  The COA agreed that this remote isolated fact did not indicate W purposefully availed herself in any manner.  As to the SAPCR, there was likewise no dispute that TX did not have UCCJEA jurisdiction over the children as they had never been to TX and had resided in FLA for over six months.  H argued however that the TX court at the very least should have granted him a divorce because he was a TX resident.  The COA held that under TFC 6.308, a TX court “may” decline to exercise its jurisdiction over some issues when it lacks jurisdiction over other and that nothing requires a court to grant a divorce if it cannot likewise divide the parties’ property or address matters regarding their children because jurisdiction over those issues is lacking.  Finding no abuse of discretion, the dismissal was affirmed.






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