Opinions, May 28, 2015

The First District Court of Appeals issued its Memorandum Opinion in Masoud v. Handler, No. 01-14-00439-CV (Tex.App.–Houston [1st Dist.] May 28, 2015) today. In that case, Masoud did not appear for trial and a default divorce decree was entered. He filed a motion for new trial, claiming he did not have notice of the trial date. The trial court, the 328th Judicial District Court in Fort Bend County, denied the motion and Masoud appealed.  The record established that Masoud was sent notice of the trial setting via certified mail (which went unclaimed) and Handler testified that Masoud avoided service of divorce-related documents. Handler also presented evidence that Masoud still lived at the address she attempted to serve him at. Indeed, he conceded at the hearing on the motion for new trial that he had been served at that address in another proceeding. Additionally, evidence from the process server indicated service was attempted on him five times. The Court of Appeals affirmed the denial of the motion for new trial.

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Opinions, May 21, 2015

The Fourteenth Court of Appeals released its published opinion in Philips v. McNease, No. 14-14-00161-CV (Tex.App.–Houston [14th Dist.] May 21, 2015) today which, if anything,  presents a cautionary tale about signing lifelong contracts.

John and Gail divorced in 1998. Their decree incorporated the terms of a written agreement which stated John would provide Gail with “contractual alimony” of $1,500/month for the rest of Gail’s life, even if John predeceased her. Just to cut to the chase: It’s enforceable.

In 2002, John sought to modify the terms of the contractual alimony which he described as “maintenance and support” under Chapter 8 of the Family Code because there had been a material and substantial change since the divorce; namely, John’s fortunes had fallen and Gail’s had risen.  John also sought termination of the contractual alimony, alleging it contravened the terms of statutory maintenance, lacked consideration, and was void for unconscionability. Gail responded that the trial court lacked jurisdiction, the petition was an impermissible collateral attack on the decree and that the modification was precluded by res judicata and collateral estoppel. In 2003, the trial court denied Gail’s arguments and found there had been a material and substantial change and lowered John’s payments from $1,500 to $1,250/month, but denied his request to terminate the contractual alimony.

In 2012, John filed another petition to modify asserting what the Court of Appeals characterizes as two broad grounds for relief: the so-called “Family Code Claim” under Chapter 8 for modification because his fortunes had fallen yet further; and what the Court of Appeals characterizes as the “Contract Claim,”  in which John argued the terms of the decree should be set aside under several contract theories. Gail filed a plea to the jurisdiction (arguing the trial court had no authority to act under the Family Code because the Family Code applies to court-ordered maintenance, not contractual alimony) and motion for summary judgment on traditional and no-evidence grounds (arguing: 1) there was no evidence to support any theory under the Contract Claim; and 2) each theory except frustration of purpose was barred by res judicata; and 3) alternatively, each theory failed as a matter of law) but did not seek summary judgment on the Family Code Claim. In 2013, the trial court granted Gail’s motions for summary judgment and signed a final judgment which dismissed John’s motion to modify in its entirety and included a Mother Hubbard clause denying all relief not specifically granted.

On appeal, the Court of Appeals found that the final judgment was overbroad and thus erroneous because it denied the Family Code Claim despite the fact that Gail’s motions for summary judgment did not address it at all. In other words, the judgment granted relief beyond the scope of the pleadings. As such, the Family Code Claim was remanded to the trial court.

As for the Contract Claim, the Court of Appeals addressed each theory in turn. The court affirmed the trial court’s granting of no evidence summary judgment for John’s “frustration of purpose” or impossibility theory.

The court also found that John’s unconscionability and lack of consideration theories were barred by res judicata because he asserted them in the first modification proceeding to no avail. Res judicata also barred his other theories–undue influence, duress, extrinsic fraud, and mistake of fact–because he could have asserted them in the first modification but failed to do so.

Finally, the Court of Appeals rejected John’s arguments the contractual alimony violated public policy because the obligation was “perpetual.” The Court of Appeals held John had been free to negotiate different terms during the divorce. “A deal is a deal, and we will enforce John’s contractual obligation to the fullest extent that the law of contracts will allow.”

As the case returns to trial court, John’s remaining Family Code Claim will require him to establish the material and substantial change he previously asserted.

Opinions, May 19, 2015

The Fourteenth Court of Appeals released two memorandum opinions today, in Hall v. Hall, No. 14-12-00655-CV (Tex.App.–Houston [14th Dist.] May 19, 2015) and in In re Merrikh, No. 14-14-0024-CV (Tex.App.–Houston [14th Dist.] May 19, 2015), the latter of which is actually a replacement opinion from the prior opinion entered on March 17, 2015 and which I blogged about here. Because the Merrikh replacement opinion has only minor changes to the recitation of facts (specifically, the evidence the trial court relied upon in estimating the husband’s income), I won’t revisit it in detail.

In Hall v. Hall, the parties married in 2005 and separated in 2010. They had one child. Trial on the issue of possession and access to the child began in December 2011. Not only were both parties represented by counsel, but the father is a practicing attorney. After two days of testimony, the associate judge called the parties’ attorneys into chambers and strongly suggested that the parties come to an agreement and recommended certain terms. In an ominously terse footnote, the Court of Appeals stated, “We make no comment on the propriety of the associate judge’s alleged actions in this case.” The parties then discussed specific terms and signed a hand-written document called “Judge’s Ruling” which was signed by the associate judge the next day at the prove-up hearing. Under oath, both parties stated they were in agreement with the Judge’s Ruling. The Judge’s Ruling dealt with possession and access of the child, child support and the fees of the amicus attorney.

The father then filed a motion for new trial alleging he was deprived of his right to trial and objected to several terms of the Judge’s Ruling. That same day, he filed a request for findings of fact and conclusions of law. He also filed a motion to restart the trial. The trial court signed a divorce decree and eventually denied his motion for new trial orally.

In four of his eight issues on appeal, the father challenged the trial court’s granting of summary judgment which is somewhat mystifying as there was no summary judgment entered or even requested. Apparently, the father is referring to the associate judge interrupting the trial to recommend terms of a settlement as a summary judgment, but there appears to be little, if any, support for this being considered a summary judgment. Because the father failed to preserve error, his first six issues were overruled.

In his seventh issue, the father argued the trial court’s ruling was presumed harmful because it failed to file findings of fact and conclusions of law. But because the father failed to point to any place in the record where disputed evidence on the parties’ marital estate was presented, no findings and conclusions were required and the issue was overruled.

In his eighth issue, the father’s challenge to the amicus’s fees was overruled because he made no timely complaint to the trial court on this issue.

All told, an interesting case.

Opinions, May 14, 2015

The First District Court of Appeals issued its memorandum opinion in Stafford v. Stafford, No. 01-13-01060-CV (Tex.App.–Houston [1st Dist.] May 14, 2015) finding the trial court impermissibly modified the divorce decree instead of clarifying it. After 20 years of marriage, Linda and Charles divorced in 2000. Charles was a federal employee and in the agreed final decree, Linda was awarded 50% of his retirement benefits. Thirteen years after the divorce, Charles sought clarification of the decree, arguing that Linda was not entitled to post-divorce salary increases. The trial court agreed but the Court of Appeals did not, finding that the decree was unambiguous. Specifically, the decree stated, “benefits under the Federal Employees Retirement System are governed by the standard conventions established in Part 838 of Title 5 of the Code of Federal 7 Regulations.” Part 838 provides that a court order awarding a former spouse a percentage of an employee’s retirement benefits entitled the former spouse to salary adjustments unless the decree directly and unambiguously states otherwise. 5 C.F.R.  § 838.622(b)(1). Because there was nothing in the decree which contradicted the default rule, the default rule applied. The Court of Appeals found this to be “not merely a clarification of the decree” but a substantial alteration of the decree’s division of property. The judgment was reversed and remanded.

Opinions, May 12, 2015

On May 12, 2015, the Fourteenth Court of Appeals issued its memorandum opinion in Ex parte Baker, No. 14-15-00421-CV (Tex.App.–Houston [14th Dist.] May 12, 2015). The recitation of the facts is about as long as the holding. Relator was found in contempt in October 2014 for failure to pay child support. In February 2015, relator’s sentence was suspended for sixty months conditioned on relator’s paying $1,000.00 for coercive contempt. The OAG requested the trial court rescind the commitment date and set probation. On April 17, 2015, the trial court signed an order rescinding relator’s commitment date and setting probation and ordered relator to appear for a compliance hearing on April 27, 2015. The trial court found relator was not in compliance with its previous orders and relator was taken into custody. A written commitment order was issued on May 1, 2015. Relator filed a petition for writ of habeas corpus.

Relying on the similar case In re Zandi, 270 S.W.3d 76, 78 (Tex. 2008)(orig. proceeding), the Court of Appeals ordered relator discharged because relator did not have notice that his suspension of sentence would possibly be revoked as no one filed a motion to revoke and the trial court did not issue a show cause order.

Opinions, April 30, 2015

Houston family law and appellate attorney Janice Berg had a banner day yesterday when the First and the Fourteenth each handed down a published decision in her party’s favor. Interestingly, both cases came out of the 309th Judicial District Court. And even more interesting is Chief Justice Kem Frost’s concurrence in Bartlett v. Bartlett.

In the original proceeding In re McLaurin, No. 01-14-00920-CV (Tex.App.–Houston [1st Dist.] Apr. 30, 2015) (in which both Janice and Dan Lemkuil were listed as the relator’s lawyers on appeal) Lea filed a petition for writ of habeas corpus. She and her husband Scott had divorced in 2010. In 2011, Lea filed a post-divorce enforcement action which resulted in Lea’s request being denied and the trial court ordering Lea pay Scott sanctions in the amount of $52,378.88 as reimbursement for attorney’s fees (the “Judgment”). Lea was ordered to pay the Judgment by June 12, 2014. Lea filed an appeal of the Judgment, which is pending in another cause number. Scott then filed a petition for enforcement seeking to hold Lea in contempt for failure to timely pay the Judgment. This time, Lea was given until November 13, 2014 to pay the Judgment. On November 13, 2014, Lea was found in civil and criminal contempt for failing to pay the Judgment. She was also found liable for Scott’s further attorney’s fees in the amount of $13,020.00 (plus $283.24 in costs). Lea was taken into custody and confined in the Harris County Jail. She filed her petition for writ of habeas corpus the next day asserting her incarceration unconstitutionally imprisoned Lea for a debt. The Court of Appeals agreed, finding the initial $52,378.88 sanctions order and the subsequent $13,020.00 fee award were not related to child support and thus could not serve as the basis for a contempt judgment ordering imprisonment.

In Bartlett v. Bartlett, No. 14-14-00058-CV (Tex.App.–Houston [14th Dist.] Apr. 30, 2015), Lori Bartlett sued her ex-husband William Bartlett for breach of contract for violating provisions of their divorce decree. In the agreed decree, in a section setting forth the division of the marital estate and not in the child support section, William was ordered to pay the reasonable post-high school education expenses of each child, including, inter alia, books, room and board, and health insurance, “provided the child is a full-time student and maintains at least a ‘C’ or equivalent grade point average.” Their son’s GPA dipped below a C average to 1.929 after the first year of school, but after a summer session, it was at least a C average. The trial court signed a final judgment in Lori’s favor, finding William had breached the decree. The trial court’s findings of fact and conclusions of law concluded, in part, that the college-expense provision was not for child support. William appealed.

On appeal, four of William’s five issues are premised on the proposition that the college-expense provision was one for child support. But, the Court of Appeals noted, post-majority support is not child support. The opinion (signed by Justice McCally and joined by Justice Boyce) addressed each of these four issues with dispatch.

In the only issue not premised on the notion that the college-expense provision was child support, William argued that the contract was materially breached when the son failed to maintain a cumulative C GPA which excused his further performance. Lori argued that William waived this issue by not obtaining or requesting a finding on the issue in the trial court. The Court of Appeals agreed. The trial court’s findings did not address the issue because William did not plead material breach as an affirmative defense.

Lori also argued that even if the son did breach the contract by not maintaining a C average, it was not a material breach. The Court of Appeals held that the trial court could have reasonably found that any breach was not material as to the expenses awarded to Lori. The majority even spent almost two pages of its opinion analyzing whether the trial court could reasonably find that the son’s GPA dip below the C level was not a material breach.

Chief Justice Kem Frost filed a colorful and slightly formalistic concurrence which begins with the tantalizing line, “This is a case of mistaken identity” which immediately called to my mind a detective novel.

The Chief Justice’s concurrence flows from the argument that the son’s failure to maintain a C average is not a breach of contract, but a failure of condition precedent. That is, “[t]he son’s achieving a ‘C’ average was an event not certain to occur that affected William’s duty to perform” because “[t]he parties intended this event to occur before Lori or the son had a right to William’s performance.” The Chief Justice also argued that because the son’s GPA was not “maintained” above a C average (i.e. without interruption), William had no continuing obligation to pay after the lapse. Then, “[e]ven presuming for the sake of argument that a breach-of-contract analysis would be appropriate in this context,” the Chief Justice found the 1.929 GPA to be a material breach: “Anything that falls short of meeting [this exact and unforgiving standard] is a material failure.” I am glad I did not have to show my undergraduate transcript to the Chief.

Then, in a plot twist worthy of a detective novel, appears a section entitled: “A Game-Changer: Operation of Texas Rule of Civil Procedure 54.” In her live petition, Lori pled that all conditions precedent to her claims had been performed or had occurred. Under TRCP 54, Lori was required to prove only the conditions precedent that William specifically denied and William did not specifically deny that the son maintained a GPA of at least C. Because William did not specifically deny it, Lori did not have to prove at trial that the condition precedent was satisfied, had been performed, or had occurred. Thus, though the Chief found the trial court’s contractual analysis flawed, she found there was no basis to overturn the judgment and, she concluded on a bit of a poetic note, “so the appeal has a strange and ironic ending” (like many a good detective novel).