Sec. 8.101(b)(2) that allows wage withholding “if the alimony payments are not timely made under the terms of the contract” does not mean what it seems to clearly say, in part because the Texas Constitution only allows wage withholding for child support and court ordered spousal maintenance, not agreed contractual alimony. Note: Sec. 8.101(a-1) has been added by the last legislature effective 9/1/2013 that specifically allows wage withholding for contractual alimony. This decision might mean that new law is unconstitutional. Pappolla v. Simovich, No. 14-12-00418-CV (Tex. App. - Houston [14th Dist.] 5/21/2013). ... Read More >
Archives for July 2013
Mystery payment to husband from his business can be considered an asset in calculating community property division.
This lengthy case addresses many diverse issues, including divorce jurisdiction over Mexican citizens who own a home in San Antonio and whose son attends school there and includes numerous examples of how not to object or preserve error regarding jury questions or evidence. However, this case also provides another example of a trial court pretending a spouse has a phantom asset when a large cash payment cannot be explained. The husband owned a business along with a friend. The friend invested $195,737.23 and the husband soon thereafter withdrew $195,000 and even the company’s accountant could not explain the transaction. The trial court valued the husband’s interest in the business as if the unexplained withdrawal had not happened and included the $195,000 as a separate asset for the husband. The court of appeals held that the trial court did not abuse its discretion in doing so. Nieto v. Nieto, No. 04-11-00807-Cv (Tex. App. - San Antonio 5/1/2013). ... Read More >
Interesting example of how a court can divide assets that were not awarded in the original divorce.
The parties were divorced in 2002 and the court’s property division then was 63% to the wife. Eight years later, the wife filed a petition seeking post-divorce division of two pieces of land and some mineral rights that had not been awarded in the divorce decree. This time, the trial court made an overall 50-50 division of the property including what was originally awarded and the undivided assets. The wife on appeal complained that she should have been awarded 63% of the newly discovered assets. The court of appeals held that the trial court was not bound by the property division ratio it used in the original divorce and the trial court did not err in using the 2002 values for the land instead of the 2011 values. Harton v. Wade, No. 12-12-00158-CV (Tex. App. - Tyler 5/22/2013). ... Read More >
Detailed discussion of the acceptance-of-benefits doctrine which commonly arises in divorce cases when a former spouse accepts certain assets awarded in the judgment but then tries to appeal the remainder of the judgment.
An appellee bears the burden of proving that an appellant is estopped from challenging the judgment by appeal under the acceptance-of-benefits doctrine. When the doctrine applies, an appeal is rendered moot and the appeal should be dismissed. The doctrine does not apply when (1) acceptance of the benefits is because of financial duress or other economic circumstances, or (2) the reversal of the judgment on the grounds appealed cannot possibly affect an appellant’s right to the benefits accepted under the judgment. The appellant bears the burden to prove an exception applies. Here, the wife was awarded the 2005 Lexus and the husband was ordered to pay the car note on the Lexus. The wife tried to appeal the division of community property but during the appeal she sued her ex-husband in justice of the peace court claiming he had “sold her the car” but failed to pay for it. The wife’s appeal was dismissed because of the acceptance-of-benefits doctrine after a very detailed ... Read More >
Land acquired with wife’s separate property but deeded to husband and wife was not a gift of a 50% interest to the husband.
This case shows how to overcome the presumption that when a spouse uses separate property to acquire land during the marriage and takes title to the land in the names of both the husband and wife, it is presumed that the interest given the non-purchasing spouse is a gift. Here, a trust was established in favor of three sisters, one of whom was the wife in the divorce case. The 23 acres was conveyed from the trust to the wife and husband and the husband claimed he owned a one half separate interest in the land. Each sister was deeded land from the trust and each deed recited that the sisters were giving up their separate interests in those properties. The trial court awarded it all to wife as her separate property. The court of appeals affirmed the trial court’s ruling and held: (1) the husband had the burden to prove he owned one half of the land as his separate property [it is not clear why the wife did not have the burden to prove it was all her separate property]; (2) the ... Read More >
This father did not have a prayer! Ordering a father to give up a few hours on every one of his Sunday mornings so that the mother can take the children to religious education does not violate the Establishment Clause of the First Amendment.
The San Antonio Court of Appeals found that giving the father a few extra hours on Sunday evenings made interrupting his weekends every Sunday morning for the mom’s religious preferences acceptable. Stop and think about this -- the father cannot ever leave town over a weekend because the mother gets three hours of possession of the kids every Sunday morning. Why? To accommodate one parent’s religious beliefs! How can that not be giving one parent’s religious beliefs priority over the other parent’s beliefs? What if Dad has a church he wants to take the kids to on Sunday mornings or what if he is an athiest? Rosenstein v. Rosenstein, No. 02-09-00272 (Tex. App. - Fort Worth, 8/11/2011)(mem. op.) should have decided this case but it was distinguished because the father here gets to keep the children until 9 pm on Sundays. This decision does not even address Knighton v. Knighton, 723 S.W.2d 274 (Tex. App. - Amarillo 1987, no writ). In Knighton, it was held: These constitutional ... Read More >