INTERESTING CASES:  November 7, 2018

/INTERESTING CASES:  November 7, 2018

INTERESTING CASES:  November 7, 2018

INTERESTING CASES:  November 7, 2018

Sallee S. Smyth


  1. Rust v. Rust, 2018 Tex. App. LEXIS 8020 (Tex. App. – San Antonio October 3, 2018) (mem. op.) (Cause No. 04-17-00674-CV)


H and W married in 2003 in Bexar County, Texas but filed their marriage license in Kendall County.  H is an active duty service member in the Air Force, and claims Kendall county as his home of record and Texas as his state of residence.  At some point they began living in North Carolina.  They had two children.  W filed for legal separation in NC in August 2017.  H filed for divorce in TX in mid-September.   W was served with notice of a hearing set for late September and filed a motion for continuance with the court granted.  In October, W filed a special appearance and plea to the jurisdiction, arguing that TX was not the children’s home state because the children had lived in NC for 6 years.   After a hearing the trial court granted both the special appearance and plea to the jurisdiction and awarded W $7,000 in fees.  In findings the trial court determined that H did not meet the residency requirements to file for divorce in TX and further that W has first initiated proceedings in NC to begin the divorce process, determining that it was more convenient for the entire matter to proceed in NC.  H appealed.  Regarding the residency issue, the COA determines that for service members, they do not acquire a new domicile each time they move to a new location where they are stationed.  Instead, they maintain the same residence and domicile as when they entered the service, unless there is a clear and unequivocal intention to change that domicile.  The COA found that there was no evidence suggesting that H had changed his residence from TX where H had testified that he filed his taxes as a TX resident and maintained his drivers’ license and voter registration in TX.  As such, H had a right to maintain an action for divorce in Kendall County.  The COA determined that NC was clearly the children’s home state and under the UCCJEA, TX had no subject matter jurisdiction to proceed on that matter.  The COA further determined that there was no abuse of discretion by the trial court in declining however, to exercise jurisdiction over the divorce.  The parties testified that they would remain living in NC and H planned to stay at least until his scheduled 2019 retirement.  Further, all of their property was located in NC except for a vacant lot they owned in TX.  Based on these facts, it was more convenient to decide the divorce issues in NC where W had already initiated court proceedings.  The COA found that W’s special appearance was waived by the initial filing of a motion for continuance and therefore reversed this decision.  The COA affirmed the award of attorneys fees.


  1. Keller v. Keller, 2018 Tex. App. LEXIS 8107 (Tex. App. – Fort Worth October 4, 2018) (mem. op.) (Cause No. 02-17-00466-CV)


H and W divorced in 2014 and stipulated within their divorce decree that W was eligible for maintenance under TFC Chapter 8.  The decree obligated H to pay just over $1200 per month to W until death of either, remarriage of W or further court order.  The decree provided that the amount would increase by 2% of H’s gross income every two years and obligated H to provide payroll information to W.  Further, the decree specified that the parties had both read and understood the decree.  In 2017 W filed an enforcement action alleging that H had failed to provide his earnings information, she asked that he be held in contempt and sought clarification if necessary for enforcement.  H responded and asked that the maintenance order be declared void because it was not clear, it failed to specify any duration for the payment and finally, W did not qualify for maintenance at the time of divorce because they had not been married 10 years and there were no family violence findings.  W responded that the provisions were not void, but possible voidable, however because H did not appeal from the decree he could not now collaterally attack its terms.  At trial, claimed there was no disability finding at the time of divorce.  H admitted that W had received disability payments and that he had paid her maintenance under the decree of $43,000.  W testified that she had a disability resulting from brain surgery in 2007, affecting her memory and that she was unable to work.  The trial court ordered maintenance terminated finding that the prior order required a specific disability finding which was not present and that it failed to state duration of the payments.  The court signed an order finding the maintenance order unenforceable.  W appealed.  In a single issue, W claimed that H did not establish any grounds for modifying the spousal maintenance order and that the basis for the trial court’s decision which relied upon H’s claims were errors which H was required to bring in a direct appeal from the prior decree.  The COA held that if a party contends that the trial court makes an error by violating terms of the Family Code, those errors must be asserted in a direct appeal.  Just because terms within a divorce order are “unlawful,” does not make these terms subject to a collateral attack in a subsequent proceeding which seeks to enforce them.  The COA notes that the H’s grounds for terminating the maintenance obligation are not jurisdictional and thus the trial court erred.  The order is reversed and the case is remanded to the trial court for further proceedings on W’s enforcement action.


  1. Williams v. Finn, 2018 Tex. App. LEXIS 8519 (Tex. App. – Houston [1st Dist.] October 18, 2018) (mem. op. on rehearing) (01-17-00476-CV)


Note:  This decision was originally reported in the August 1, 2018 edition of Interesting Cases (2018 Tex. App. LEXIS 5154)  On rehearing, the original opinion is withdrawn and a new opinion has been substituted to replace it.  The outcome is the same.


H & W divorced in 2009.  W filed a MTM in 2011 and the parties reached agreements on these issues in late 2014.  Both parties sought to have judgment entered on the agreement and both parties filed proposed orders.  The trial court signed H’s proposed judgment on March 6, 2015.  W filed a MNT on March 30, complaining that the judgment as entered did not comply with the terms of settlement.  While the MNT was pending H & W attended mediation and reached a new settlement, signed on May 14, 2015.  Within the new MSA the parties agreed it was not subject to revocation and further provided that future disputes would be decided in arbitration.  The MSA further provided that W’s motion for new trial would be granted and the March 6 order set aside. to allow for entry of the new judgment.  The next day W filed a notice of settlement.  Thereafter on May 29 W filed a proposed order granting a new trial and providing for the new settlement terms.  The trial court never signed the proposed order.  Thereafter, in September 2015 W filed another MTM seeking to enforce the terms of the May 2015 MSA.  H filed a notice revoking the MSA.  W further sought to compel arbitration under an arbitration clause contained in the MSA.  The trial court ordered the parties to arbitration, the arbitrator issued an award in compliance with the May 2015 MSA and the trial court signed a final judgment.  H appealed.  H challenged the validity of the May 2015 MSA, asserting that it expired by its own terms when the trial court’s plenary power over the prior modification suit expired without an order being signed.  H argued that the MSA was effectively an MSA which was overruled by operation of law and W was required to appeal from the March 6 judgment before she could seek to enforce the May 2015 MSA.  H argued that since W did not appeal, she forfeited her rights under that agreement.  H also argued, pursuant to the Opinion in Highsmith v. Highsmith, 2017 Tex. App. LEXIS 9213 (Tex. App. – Amarillo September 26, 2017 pet. filed) (holding that a pre-suit MSA in a divorce case was not binding and enforceable under TFC 6.202 because the existence of a suit was a prerequisite to enforceability) that the May 2015 MSA was effectively a pre-suit MSA as it preceded the filing of the September 2015 modification.  H also argued that the trial court erred in compelling arbitration because that agreement was contained in the 2015 MSA which he claimed was no longer valid.  The COA noted that the May 2015 MSA could not be considered an amended MNT because it was not timely filed as such and could not have preserved error upon which W could have appealed.  Amended MNT’s are due within the same initial 30 day deadline as an original MNT if intended to preserve error.  The MSA in this case as filed after the initial 30 days after judgment expired and thus W could not have appealed from the trial court’s failure to include it within its judgment.  The COA further held that the MSA was fully valid because it was signed while the trial court still retained plenary power over the March 6 judgment, effectively determining that the MSA was signed while the first modification suit was pending.  Because the MSA was filed while the first modification suit was pending, the H’s arguments under Highsmith regarding a “pre-suit” MSA were not persuasive.  The COA held that the MSA was valid at the time it was executed and nothing in the terms of the MSA would have caused it to expire and nothing in the governing statutes dictate that it becomes invalid once the trial court’s plenary power expires.  As such, when the trial court failed to enter an order on the MSA during its plenary power over the original suit, nothing prevented W from seeking to enter a judgment on that same MSA in a future proceeding, i.e. the September 2015 modification.  As such the trial court did not err in compelling arbitration nor in signing a judgment based on the parties’ MSA.  Judgment affirmed. 



2018-11-06T14:50:29-06:00 November 7th, 2018|Uncategorized|