Opinions, October 8, 2015: Does Overpayment of Child Support = Theft?

Two interesting memorandum opinions this morning, one from the First District Court of Appeals and one from the Fourteenth.

In Crotts v. Healey, No. 01-15-00076-CV, Alan Crotts sued his local district attorney and assistant district attorney for refusing to prosecute a theft allegedly committed against him by the mother of his children. Frankly, it’s not a really a family law case and it doesn’t reach the novel assertion that overpayment of child support constitutes theft, but I think the facts and claims of the pro se appellant are interesting.

Jessica Cole, mother of Alan Crotts’ children, claimed she was owed child support. The OAG garnished almost $7,000 from Crotts’ income tax return. Crotts argued she was not entitled to it. In a suit for modification of the child support order, Crotts requested and was denied a $7,000 credit for the alleged overpayment. About a year later, Crotts reported Cole to the Sugar Land police for theft of the $7,000. Jeff Strange, assistant district attorney for Fort Bend County, informed the police he would not prosecute Cole for theft.

Naturally, Crotts filed a lawsuit against John F. Healey Jr., Fort Bend District Attorney and Strange for failure to prosecute Cole, alleging, interestingly, civil rights violations, breach of contract, and abuse of process. The trial court granted the DAs’ plea to the jurisdiction. Crotts appealed.

The COA’s analysis can be summed up in two words: Prosecutorial immunity.

In White v. White, No. 14-14-00593-CV, Barbara White appealed a final divorce decree and QDRO, challenging the trial court’s division of the marital estate and the trial court’s denial of Barbara’s request to reinstate her maiden name. The Court of Appeals sustained the division, but reversed and remanded on the name change issue. For those keeping score at home, this is the second name change case this week.

Barbara and James White were married in January 1995 and Barbara filed for divorce in November 2012. After trial in March 2014, the trial court signed a decree and QDRO on April 22, 2014.

James began working for the fire department in 1967 and began contributing to his retirement in March 1968. In 1998 he ceased regular employment and participated in the DROP program for ten years until, in 2008, he retired. At the time of divorce in 2014, his DROP account contained $640,000 of which the trial court declared $590,000 was his separate property. The trial court also ordered Barbara to receive $962.99/mo of James’ $8,700 monthly retirement payment.

In eight issues, Barbara challenged the decree. James filed a motion to dismiss the appeal, alleging Barbara was estopped from appealing the judgment because she voluntarily accepted the benefits thereof.

Generally, a party who accepts the benefits of a judgment is estopped from challenging the judgment on appeal. There are exceptions, all of which Barbara alleged here: 1) If the benefits were accepted due to economic necessity; 2) If the appellant accepts only that part of the judgment that the appellee concedes is unquestionably due to the appellant; and 3) If the benefit accepted was cash, the use of which would not prejudice appellee.

James contended Barbara was awarded and accepted numerous benefits under the decree, including substantial cash sums, several vehicles, and the monthly $962.99.

First Barbara contended she accepted the benefits under severe economic necessity. She provided an affidavit which stated her alleged monthly expenses (e.g. $748/mo. for utility expenses (!!)) but did not include any supporting documentation such as bills or invoices. The Court of Appeals found her claims of economic necessity conclusory. Further, she did not deny that she accepted at least one non-cash benefit–a 2001 Buick–which precluded her economic necessity exception argument. Finally, Barbara did not argue she couldn’t borrow money to meet her expenses or that she couldn’t have obtained money during the pendency of the appeal by requesting temporary support payments.

Under the entitlement exception, Barbara argued she accepted only benefits which James conceded she was entitled to. Specifically, she argued that the trial court awarded her property that James asked the court to award to her. The Court of Appeals found this misconstrued the exception. The exception applies “only if the appellant could not possibly be divested on remand of those assets already awarded.” Because James could argue on remand that Barbara should receive a smaller portion of these items, Barbara’s argument was overruled.

The cash benefit exception applies to relatively small cash benefits–in comparison to the total value of the community estate–because the trial court can take the amounts into account on remand.  As noted above, Barbara accepted non-cash benefits. But setting that aside, the Court of Appeals noted Barbara had taken control of the entire cash amount awarded to her which constituted about half of the community funds and had not provided proof that she had not spent the entire sum. Because she did not establish that James would not be prejudiced on remand, the Court of Appeals overruled her argument.

As for the name change issue, Barbara requested in her petition that her name be changed back to her maiden name. Inexplicably, the trial court denied the request on the record. The statute (Section 6.706(a) of the Texas Family Code) has command language and the Court of Appeals reversed that portion of the decree.

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