Opinions, May 24, 2016: Please Plead Me

This morning brings us one published and one memorandum opinion from the Fourteenth Court of Appeals, both wins for well-known Houston family law attorney, Walter Mahoney.

In the published opinion, Day v. Day, No. 14-15-00326-CV, the appellant Timothy Day in a restricted appeal challenged the divorce decree entered that awarded spousal maintenance to his ex-wife, Kelly Day, when she had not pled for it.

Kelly filed an original petition for divorce which was served on Timothy. Timothy did not answer or appear. After presenting evidence, Kelly took a default judgment against him which divided the community property and ordered Timothy to pay spousal support for 60 months. Timothy filed a restricted appeal within the six-month deadline.

Timothy’s single issue on appeal is that the trial court erred by awarding spousal maintenance when Kelly’s pleadings did not request it. The Court of Appeals agreed that Kelly had not pled for spousal maintenance and had not provided fair notice it would be an issue at trial. Kelly argued that the pleading gave fair notice by requesting temporary relief and referencing her need for future support. The COA disagreed, construing the petition language to request spousal support while the divorce was pending, not support that extended after divorce.

Kelly also argued that her prayer for general relief was sufficient but the Court of Appeals disagreed there too. The court did note, however, that in the default judgment context, some courts have held that a prayer for general relief will support an award of any relief raised by the evidence. But (a significant but) the relief must be consistent with the allegations in the petition. The Court of Appeals looked to the portion of Kelly’s petition which asked the trial court to consider her “need for future support” as one of the “reasons” she “should be awarded a disproportionate share of the parties’ [community] estate.” The Court of Appeals found this was not consistent with with an award of post-divorce spousal maintenance.

The Court of Appeals sustained Timothy’s issue and deleted the portion of the decree awarding the post-divorce spousal support.

In the unpublished opinion, Williams v. Williams, No. 14-15-00090-CV, Jeff Williams appealed the decree out of the 311th. In his single issue, Jeff challenged the decree’s division of a portion of his retirement account which he claimed were his separate property. In support of this position, he made two arguments: 1) the trial court erroneously failed to include a separate property finding in the decree when the trial court purportedly made an oral pronouncement at the end of trial; and 2) Jeff established the separate property character of the retirement funds by clear and convincing evidence.

The Court of Appeals took issue with the first argument, stating that Jeff did not cite to any place in the record where he preserved his argument by making it in the trial court. Even if he had, the trial court would have still had plenary power when the decree was entered and appellate courts interpret variances between a judge’s oral rendition and the final decree to be “effectively modifications.”

Turning to the second argument, the Court of Appeals agreed that all the evidence at trial showed that Jeff had about $18,000 in his retirement account at the time of marriage.  Both parties presented inventories representing that amount as Jeff’s separate property, and the testimony and rollover document admitted into evidence supported the conclusion.

The Court of Appeals remanded the entire division back to the trial court because the amount at issue was not de minimis.





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