Saturday, June 16, 2007

Confrontation Clause Violated in Domestic Violence Case


Panel of First Court of Appeals Throws Out Domestic Violence Conviction Obtained Without Victim's Live Testimony at Trial


Zapata v. State (5/17/2007) (Tex.App.- Houston [1st Dist.] May 17, 2007, petition for discretionary review filed)(Jennings)(criminal case, DV)

In this appeal of a criminal domestic violence case, a gender-mixed panel of the First Court of Appeals reverses a man's conviction for assault on his wife. The court finds that the investigating officer's testimony about the complainant's out-of-court statements at the scene of the incident should have been excluded, and that the admission of the evidence was harmful because it was the only evidence supporting the elements of the charged offense. The investigating officer had not witnessed the assault and the complainant herself did not testify.

The opinion explains the difference between testimonial and non-testimonial statements, and under which conditions out-of-court statements made by a complainant at the scene may be admitted even though the complainant does not testify at trial and is not subject to cross-examination.

Disposition: Reverse trial court judgment and remand case for further proceedings.
Opinion author: Justice Terry Jennings
Panel Members: Chief Justice Sherry Radack, Justices Terry Jennings and Jane Bland
Appeals Court Cause No.: 01-06-00286-CR
Full style of case: Jose Raynundo Zapata v. The State of Texas
Appeal from Co Crim Ct at Law No 8 of Harris County

Legal lingo: domestic violence, DV, assault, hearsay testimony, testimonial and nontestimonial witness statements, confrontation clause, cross-examination , right to cross-examine accuser, complainant

Order Requiring OAG to Return Money Seized from Dad's Bank Account for Child Support Reversed on Appeal


Nonresident's Fight to Invalidate Default Judgment for Lack of Personal Jurisdiction Leaves Him In No-Win Situation

Office of the Attorney General of Texas v. Joe V. Phillips Tex.App.- Houston [1st Dist.] May 31, 2007)(Hanks)(order voiding child support arrearage reversed)

First Court of Appeals, in an opinion by Justice George Hanks, holds that California resident consented to personal jurisdiction when he challenged child support enforcement efforts based on Texas divorce and paternity determination on the ground that the Court did not have personal jurisdiction over him. California resident averred that he had no notice of the Texas proceeding, in which default judgment had been rendered against him, and that personal jurisdiction over him was lacking.

Attorney General appealed from Houston Family Court Judge Doug Warne's order that California resident owed zero $ in child support arrearages because underlying judgment was void. Holding that the judgment was merely voidable, not void, and that California resident waived his objection to personal jurisdiction by appearing in Texas court to fight the Attorney General [which acts as child support enforcement agency in Texas], the court of appeals reverses the trial court's order requiring the Office of Attorney General to return money seized from the man's bank account.

Dispostion: Trial court judgment reversed, and remanded to trial court for further proceedings
Panel members: Justices Sam Nuchia, George C. Hanks, Jr., and Jane Bland
Appellate cause no: 01-05-00973-CV
Full style: The Office of the Attorney General of Texas v. Joe V. Phillips
Trial Court: 311th District Court
Trial Court Judge: Hon. Doug Warne
Appellant's attorney: John B. Worley, Texas Attorney General Greg Abbott
Appellee's attorney: Scott Ramsey

Legal lingo: Child support enforcement, arrearage, bank account levy, personal jurisdiction, in personam jurisdiction, long-arm jurisdiction statute, pleading jurisdictional facts, special appearance, void judgments, voidable judgments, nonpaternity, child of the marriage, marital presumption of paternity, parentage, collateral attack

Wednesday, June 13, 2007

Beistel v. Allen

Beistel v. Allen (Tex.App.-Houston [1st Dist.] May 31, 2007)(Bland)

REVERSE TC JUDGMENT AND REMAND CASE TO TC FOR FURTHER PROCEEDINGS: Before Chief Justice Radack, Justices Jennings and Bland
01-06-00246-CV
Elizabeth Beistel v. Robert Theodore Allen, Jr.
Appeal from 246th District Court of Harris County

Opinion issued May 31, 2007

MEMORANDUM OPINION BY JUSTICE BLAND

Appellant Elizabeth Beistel appeals the trial court’s termination of two wage-withholding orders against appellee Theodore Allen. In four issues, Beistel contends (1) the trial court lacked subject matter jurisdiction to terminate the wage-withholding orders, (2) Beistel was an indispensable party to the termination hearing, (3) the trial court abused its discretion in terminating the wage-withholding orders because the evidence is legally and factually insufficient to support the trial court’s findings that Allen overpaid his child support obligation and that no child support was due and owing, and (4) the trial court terminated the wage-withholding orders based on an incorrect legal theory. We conclude that (1) the trial court had jurisdiction to terminate the wage-withholding orders, (2) Beistel made a general appearance at the termination hearing, and (3) the trial court abused its discretion in terminating the wage-withholding orders. We therefore reverse.
Background

In May 1986, Beistel and Allen obtained a divorce in Ohio. The Ohio court ordered Allen to pay forty-five dollars a week in child support for each of the couple’s two children. Allen moved to Texas shortly after the divorce.
In 1988, 1994, and 2000, Beistel obtained judgments in Texas against Allen under the Uniform Reciprocal Enforcement of Support Act and the Uniform Interstate Family Support Act (UIFSA). The judgments state the amount Allen owes in child support arrearages, and order Allen to make payments toward the arrearages. To enforce the judgments, the trial court issued a judicial writ of withholding in 1994, and the Texas Attorney General issued an administrative writ of withholding in 2001. Both require Allen’s employer to withhold his current child support payments and a portion of the arrearages from his paychecks.
In 2005, Allen petitioned the trial court to terminate the wage-withholding orders. The Texas Attorney General intervened. The trial court held a hearing at which Allen, the Attorney General, and counsel for Beistel were present. At the time of the hearing, both of Beistel and Allen’s children were over the age of eighteen. Beistel filed a special appearance, which the trial court granted. Beistel’s counsel limited her participation at the hearing in an attempt to avoid making a general appearance. At the end of the hearing, the trial court terminated the wage-withholding orders and entered findings of fact and conclusions of law.
Subject Matter Jurisdiction
In her first issue, Beistel contends the trial court lacked subject matter jurisdiction to terminate the wage-withholding orders.

A. Invoking Jurisdiction

Beistel first contends that the trial court lacked jurisdiction to terminate the wage-withholding orders because Allen failed to file a pleading to invoke the trial court’s jurisdiction. Allen responds that he filed a petition to terminate the wage-withholding orders on June 17, 2005.
Texas Family Code section 102.002 provides that “[a]n original suit begins by the filing of a petition as provided by this chapter.” Tex. Fam. Code Ann. § 102.002 (Vernon 2002); In re A.M., 936 S.W.2d 59, 63 (Tex. App.—San Antonio 1996, no writ) (“A suit affecting the parent-child relationship commences by the filing of a petition.”). Issues concerning wage-withholding orders may be determined in a suit filed pursuant to section 102.002. See Tex. Fam. Code Ann. §§ 102.001(b), 102.002, 158.001 (Vernon 2002).
The record contains Allen’s petition to terminate the wage-withholding orders, and a time stamp at the top of the petition denotes that it was filed on June 17, 2005. The petition addresses both wage-withholding orders and their respective cause numbers, and requests that the trial court terminate them both. We therefore hold that Allen’s petition was sufficient to invoke the trial court’s jurisdiction to adjudicate a dispute over the wage-withholding orders.

B. Jurisdiction to Modify or Reduce Arrearages

Beistel next contends that the trial court lacked jurisdiction to modify or reduce the amount of child support arrearages owed by Allen.
Child support orders issued in another state and registered in Texas are enforceable in the same manner and are subject to the same procedures as child support orders issued by Texas courts. Id. § 159.603(b) (Vernon 2002). Texas courts, however, are not permitted to modify child support orders issued by other states except under particular circumstances specified in Family Code section 159.611. Id. § 159.603(c), § 159.611 (Vernon Supp. 2006).
Here, the rules applicable to the trial court’s ability to modify an out-of-state child support order do not apply. See id. § 159.611. The trial court in this case did not modify the Ohio child support order; it simply terminated the two wage-withholding orders issued in Texas. The trial court in this case issued the judicial writ of withholding in 1994, and the Texas Attorney General issued the administrative writ of withholding in 2001. See id. §§ 102.001(b), 102.002, 158.001. We therefore hold that the trial court had jurisdiction to modify or terminate the wage-withholding orders. See id.; see also id. § 158.404 (Vernon 2002) (“If a court has rendered an order that reduces the amount of child support to be withheld or terminates withholding for child support, any person or governmental entity may deliver to the employer a certified copy of the order without the requirement that the clerk of the court deliver the order.”).

Indispensable Party

In her second issue, Beistel contends that the trial court erred in terminating the wage-withholding orders after granting her special appearance because she was an indispensable party to the termination hearing. Allen responds that Beistel is estopped from asserting that she was an indispensable party to the termination hearing because she made a general appearance at the hearing through counsel.
A party enters a general appearance when it (1) invokes the judgment of the court on any question other than the court’s jurisdiction, (2) recognizes by its acts that an action is properly pending, or (3) seeks affirmative action from the court. Exito Elecs. Co. v. Trejo, 142 S.W.3d 302, 304 (Tex. 2004); Dawson-Austin v. Austin, 968 S.W.2d 319, 322 (Tex. 1998); Xenos Yuen v. Fisher, No. 01-06-00010-CV, 2007 WL 529362, at *4 (Tex. App.—Houston [1st Dist.] Feb. 22, 2007, no pet.). “Every appearance, prior to judgment, not in compliance with [the special appearance] rule is a general appearance.” Tex. R. Civ. P. 120a(1).
In this case, Beistel’s counsel attended the termination hearing and made the following statement when Allen attempted to admit a spreadsheet demonstrating that he had paid his entire child support obligation: “Your Honor, if they are offering it as a shorthand rendition of what he says got paid, I guess the Court could accept it on that basis. Otherwise, I’d object that it’s hearsay.” The trial court did not rule on the objection, but admitted the spreadsheet for the limited purpose of serving as a shorthand rendition of Allen’s testimony. Later in the hearing, the trial court was about to ask Beistel’s counsel if she wanted to cross-examine a witness when the following exchange occurred:

[Trial Court:] Okay. Ms. Quinn, I’m not sure you’re here, but maybe you are.

[Beistel’s Counsel:] I’ll be here.

[Allen’s Counsel:] I don’t think she’s here, Judge.

[Trial Court:] It may be waiving a previously granted Special Appearance.

[Allen’s Counsel:] Right.

[Trial Court:] I just see it as a legal issue. I’m not saying you are, but discretion being the better part of—

[Beistel’s Counsel:] Okay. I’ll keep my mouth shut.

[Trial Court:] If you remain moot, [sic] you won’t have a problem.

[Beistel’s Counsel:] I would agree with that, Judge.

[Trial Court:] Ms. Quinn appears as an observer. Go ahead, Ms. Martin-Simon.

Beistel’s counsel’s objection to the admission of Allen’s spreadsheet invoked the judgment of the court on a question other than the court’s jurisdiction, recognized that the action was properly pending in Texas, and sought affirmative action from the court. See Trejo, 142 S.W.3d at 304; Dawson-Austin, 968 S.W.2d at 322; see also Carone v. Retamco Operating, Inc., 138 S.W.3d 1, 8 (Tex. App.—San Antonio 2004, pet. denied) (“A general appearance occurs when a party
invokes the judgment of the court in any way on any question other than that of the court’s jurisdiction, without being compelled to do so by a previous ruling of the court. The emphasis is on affirmative action which impliedly recognizes the court’s jurisdiction over the parties.” (citations omitted)). While Texas courts have held that a party who merely observes a proceeding without participating does not make a general appearance, Beistel’s counsel participated when she objected to the admission of Allen’s spreadsheet. See, e.g., Seals v. Upper Trinity Reg’l Water Dist., 145 S.W.3d 291, 297 (Tex. App.—Fort Worth 2004, pet. dism’d); Carone, 138 S.W.3d at 8; Bradford v. Bradford, 971 S.W.2d 595, 598 (Tex. App.—Dallas 1998, no pet.); Serna v. Webster, 908 S.W.2d 487, 492 (Tex. App.—San Antonio 1995, no writ). Counsel’s participation in the hearing was inconsistent with the assertion in Beistel’s special appearance that the trial court lacked jurisdiction over her. See Dawson-Austin, 968 S.W.2d at 323 (“[T]he motion for continuance did not request affirmative relief inconsistent with Dawson-Austin’s assertion that the district court lacked jurisdiction, which, as we have noted, is the test for a general appearance.”). Additionally, counsel’s attempt to preserve the special appearance, and the trial court’s assertion that counsel was appearing as an observer, does not eliminate, or cure the effect of the objection. See Trejo, 142 S.W.3d at 304; Dawson-Austin, 968 S.W.2d at 322; Carone, 138 S.W.3d at 8. Instead, we focus on counsel’s affirmative action, which impliedly recognized the court’s jurisdiction over Beistel. See Seals, 145 S.W.3d at 296; Carone, 138 S.W.3d at 8; Bradford, 971 S.W.2d at 598. We therefore hold that the appearance and participation of Beistel’s counsel at the termination hearing constituted a general appearance. See Seals, 145 S.W.3d at 298–99 (holding that appellee made general appearance at hearing where it stated that it had no objection to appellant’s unsworn testimony, reserved right to place appellant under oath, and asked trial court to determine scope of pleadings in case); Toler v. Travis County Child Welfare Unit, 520 S.W.2d 834, 838 (Tex. Civ. App.—Austin 1975, writ ref’d n.r.e.) (holding that father made general appearance at hearing where he sought adjudication that would have permitted him and his wife to have custody of children and take them to West Virginia to live). We need not address whether Beistel was an indispensable party to the termination hearing, as Beistel’s general appearance renders this issue moot.

Legal and Factual Sufficiency

In her third issue, Beistel contends the trial court abused its discretion in terminating the wage-withholding orders because the evidence presented at the termination hearing is legally and factually insufficient to support the trial court’s findings that Allen “made overpayments of child support,” and that “no child support is due and owing.”
Generally, unless the complaining party can demonstrate a clear abuse of
discretion, orders arising from a suit affecting the parent-child relationship will not be disturbed on appeal. See Worford v. Stamper, 801 S.W.2d 108, 109 (Tex. 1990); Sotelo v. Gonzales, 170 S.W.3d 783, 787 (Tex. App.—El Paso 2005, no pet.); In re D.S., 76 S.W.3d 512, 516 (Tex. App.—Houston [14th Dist.] 2002, no pet.). In determining whether an abuse of discretion has occurred, we view the evidence in a light most favorable to the court’s decision and indulge every legal presumption in favor of its judgment. Holley v. Holley, 864 S.W.2d 703, 706 (Tex. App.—Houston [1st Dist.] 1993, writ denied). When a court fails to analyze or apply the law correctly, it abuses its discretion. Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992). A trial court also abuses its discretion if it acts arbitrarily and unreasonably, or without reference to any guiding rules or principles. Beaumont Bank, N.A. v. Buller, 806 S.W.2d 223, 226 (Tex. 1991). Legal and factual sufficiency challenges are not independent grounds of error, but relevant factors in determining whether the trial court abused its discretion. See id.; Miles v. Peacock, No. 01-06-00313-CV, 2007 WL 1166162, at *3 (Tex. App.—Houston [1st Dist.] Apr. 19, 2007, no pet. h.); Dunn v. Dunn, 177 S.W.3d 393, 396 (Tex. App.—Houston [1st Dist.] 2005, pet. denied); D.S., 76 S.W.3d at 516; McGuire v. McGuire, 4 S.W.3d 382, 387 n.2 (Tex. App.—Houston [1st Dist.] 1999, no pet.). A trial court does not abuse its discretion when there is some evidence of a substantive and probative character to support the trial court’s judgment. Newberry v. Bohn-Newberry, 146 S.W.3d 233, 235 (Tex. App.—Houston [14th Dist.] 2004, no pet.); Holley, 864 S.W.2d at 706.

At the termination hearing, Allen testified that he had paid his entire child support obligation, and admitted a spreadsheet as a shorthand rendition of his testimony showing that the withholding orders had actually caused him to pay more than he owed. Allen created the spreadsheet by calculating the total amount of child support he paid, and then subtracting the total amount of child support he owed.

To calculate his total child support obligation, Allen multiplied his weekly child support payment by the number of weeks in a year. He then multiplied this product by the number of years he was obligated to pay child support for each of his two children. The resulting calculation shows that Allen owed a total of $60,840 in child support. Allen then calculated the total amount of child support he paid by adding together the receipts provided by the Texas Attorney General. Allen alleges that he paid $79,186.98 in child support. When the amount of child support Allen owed ($60,840) is subtracted from the amount of child support Allen paid ($79,186.98), the spreadsheet shows that Allen overpaid $18,346.98 in child support.

The calculations in Allen’s spreadsheet are flawed for several reasons. First, Allen’s calculation of his total child support obligation does not include any interest charges on the arrearages. Texas Family Code section 159.604(a) provides that the law of the state that issues a child support order governs “(1) the nature, extent, amount, and duration of current payments under a registered support order; (2) the computation and payment of arrearages and accrual of interest on the arrearages under the support order; and (3) the existence and satisfaction of other obligations under the support order.” Tex. Fam. Code Ann. § 159.604(a) (Vernon Supp. 2006). Ohio law requires that a certain amount of interest accrue on child support arrearages, and the evidence in this case is undisputed that Allen has been in arrears on his child support obligation since it began in 1986. See Ohio Rev. Code Ann. § 1343.03 (LexisNexis 2006), § 3123.171 (LexisNexis Supp. 2007), § 5703.47 (LexisNexis 2005). Allen’s calculation of the total amount of his child support obligation is therefore incorrect.

Second, Allen’s calculation of the total amount of child support he paid is nonsensical. In his calculation, Allen multiplies the amount of child support he allegedly paid by various percentage rates depending upon when he made the payments. Allen then adds these amounts to the total amount of child support he allegedly paid. The record contains no evidence explaining these percentages or their significance.

Lastly, the calculations in Allen’s spreadsheet ignore the fact that his entire child support arrearage was reduced to a single judgment in 2000. Allen’s youngest child turned eighteen on November 29, 2000, which, according to the Ohio divorce decree, terminated his current child support obligation. The same month, the trial court entered a judgment against Allen that consolidated all of his child support arrearages. The Attorney General admitted this judgment at the termination hearing, which shows that as of November 15, 2000, Allen owed $30,346.88 in child support arrearages. The calculations on Allen’s spreadsheet, however, are based on the total amount of child support owed, and the total amount of child support paid. Allen produced no evidence regarding the amount of the arrearage judgment or any accrued interest on the judgment that he has paid since November 15, 2000. Without this evidence, the trial court had no way to determine if Allen has completely paid his child support arrearage judgment.

Allen’s testimony that he paid his entire child support obligation is based on the spreadsheet he admitted into evidence, which as determined above, is facially incorrect and does not address the amount of the arrearage judgment Allen has paid since November 15, 2000. The evidence presented therefore does not support the trial court’s findings that Allen “made overpayments of child support,” and that “no child support is due and owing.” See Zeifman v. Michels, 212 S.W.3d 582, 596 (Tex. App.—Austin 2006, pet. denied) (holding that trial court abused its discretion because evidence was legally insufficient to support conservatorship order); Stucki v. Stucki, No. 12-04-00290-CV, 2006 WL 2106969, at *5 (Tex. App.—Tyler July 31, 2006, no pet.) (holding that trial court abused its discretion because evidence was legally insufficient to support child support order); Agraz v. Carnley, 143 S.W.3d 547, 554–55 (Tex. App.—Dallas 2004, no pet.) (holding that trial court abused its discretion because evidence was legally insufficient to support child support and conservatorship orders). We hold that without evidence to support its decision, the trial court abused its discretion in terminating the wage-withholding orders. See Buller, 806 S.W.2d at 226; Miles, 2007 WL 1166162, at *3; Dunn, 177 S.W.3d at 396; D.S., 76 S.W.3d at 516; McGuire, 4 S.W.3d at 387 n.2. We reverse the trial court’s orders terminating the judicial and administrative writs of withholding and remand for further proceedings.
We need not address Beistel’s fourth issue because we have already determined that the trial court abused its discretion in terminating the wage-withholding orders.
Conclusion
We hold that (1) the trial court had jurisdiction to terminate the wage-withholding orders, (2) Beistel made a general appearance at the termination hearing, and (3) the trial court abused its discretion in terminating the wage-withholding orders. We therefore reverse the orders of the trial court and remand for further proceedings.

Jane Bland
Justice

Panel consists of Chief Justice Radack and Justices Jennings and Bland.

Monday, June 11, 2007

Award of 100% of the Home Equity to Wife Affirmed Based on Stipulation

Court of Appeals Holds that Husband Did Not Effectively Revoke Stipulation Regarding Disposition of the Parties' Home.

In his appeal from the property division in a divorce case in which conservatorship was tried to a jury, husband unsuccessfully challenged his attorney's authority to enter the stipulation concerning the assignment of 100% of the equity in the parties' home to the wife. In an opinion by Justice Guzman, a former family court judge, the appellate panel holds that husband had waived the argument on appeal by failing to first present it in the trial court.

Zavala v. Zavala (Tex.App.- Houston [14th Dist.] May 31, 2007)(Guzman)(divorce, property division)

Disposition: Affirmed
Opinion by Justice Eva Guzman
Panel composition: Justices Kem Frost, Charles Seymore and Eva M. Guzman
Appellate cause no: 14-06-00081-CV
Style: Paul Zavala v. Evelyn Zavala
Trial Court: 246th District Court of Harris County (no name for judge shown on e-docket)

Legal lingo: divorce, unequal property division, 100% of the marital home to one spouse, settlement agreement between divorcing spouses, stipulation by counsel, revocation

Motion to Modify Primary Custody Granted Less that a Year After Divorce Decree Entered


Combative Mother's Early Motion to Increase Child Support Nets Unexpected Results

In Interest of A.A.M. (Tex.App.- Houston [14th Dist.] May 31, 2007)(Guzman)(petition to modify prior order in suit affecting parent-child relationship (SAPCR) granted)

Former Family District Court Judge Eva Guzman, now a member of the Fourteenth Court of Appeals, approves trial court's custody switch to father less than one year after the signing of the final decree. Judge Linda Motheral, since retired, had granted father's counter-petition to modify, reassigned the right to designate the children's primary residence to the father, and ordered the mother to pay child support. In a hearing lasting three days, trial court received testimony that mother slapped father, moved without notification, and left the children unsupervised. Applying the Holley best-interest factors, the appellate opinion finds that the evidence presented in the trial court satisfied the material and substantial change in circumstances standard, and that it weighed strongly in favor of changing primary custody to the children's father.

Disposition: Affirmed
Opinion author: Justice Eva M. Guzman
Panel members: Justices John Anderson, Harvey Hudson and Eva Guzman
Appellate Cause No.: 14-05-00740-CV
Style: In the Interest of A.A.M and C.E.M., Minor Children
Trial Court: 257th District Court of Harris County (Judge Linda Motheral)
Mother's attorney: Jon A. Jaworski
Father's attorney: Marcia L. Zimmerman

Sunday, June 10, 2007

Superseded Judgment May Not Be Enforced While Appeal Is Pending - Writ of Prohibition Granted


Houston Appeals Court Conditionally Grants Rare Writ to Enjoin Trial Court from Exercising Contempt Powers

In re Woody K. Lesikar (Tex.App.- Houston [14th Dist.] Jun. 7, 2007)(per curiam)(writ of prohibition, supersedeas bond, enforcement by contempt, appellate jurisdiction)

In this dispute over a family trust, the party appealing from the final judgment had filed a supersedeas bond to prevent enforcement of the judgment. The court of appeals finds that the trial court was without jurisdiction to hold the judgment debtor in contempt for failure to distribute funds during the pendency of the appeal.

In a memorandum opinion, the reviewing court finds that the trial court's attempt to exercise contempt jurisdiction interferes with its jurisdiction over the subject matter of the appeal, and that a writ of prohibition is warranted. Had the judgment not been superseded, however, the trial court would have had the power to enforce it.

The parties also disputed the sufficiency of the supersedeas bond, and whether it covered the entire judgment at issue, because additional funds became available for distribution only after the death of the wife of the person whose will created the trust, and her death occurred after the final judgment was entered and the supersedeas bond had been posted. The Court holds that the appropriate remedy under these circumstances is a motion to increase the amount of the supersedeas, a matter over which the trial court does retain jurisdiction.

Like a mandamus proceeding, a petition for a writ of prohibition is an original proceeding brought in the court of appeals to control the actions of a trial court judge who fails to comply with the law. While a petition for mandamus seeks an order directing the trial court to take some specified action, a writ of prohibition, as the term implies, seeks to enjoin the judge of the inferior court from performing an unauthorized or illegal act. The actual writ, which is comparable to an injunction against the trial court judge, does not issue unless the judge fails to comply.

Disposition: Writ of Prohibition Conditionally Granted, Mandamus Denied (granted in part and denied in part)
Opinion by: Per Curiam
Appellate cause no.: 14-06-01041-CV
Style: In re: Woody K. Lesikar as trustee of the Woodrow V. Lesikar Family Trust
Trial court: 149th District Court of Brazoria County (Judge Robert May)

Legal lingo: writ of prohibition, mandamus, enforcement of judgment, sufficiency of supersedeas bond, contempt jurisdiction, appellate jurisdiction

Justices Frost and Edelman Part Ways on Standing Issue


Panel divided on nonparty law firm's standing to pursue breach of settlement and attorney's fee claim

Yasuda Fire and Marine Insurance Company of America v. Criaco (Tex.App.- Houston [14th Dist.] Jun. 7, 2007)(Frost)(standing))(auto-PI, UIM coverage, workers comp, standing, attorneys fees)
Dissenting Opinion by Justice Edelman Yasuda Fire and Marine Ins. Co. of America v. Criaco (Standing)

In this appeal stemming from the settlement of claims arising from a car wreck involving a plaintiff injured in the course and scope of his employment, the panel split on the issue on whether the law firm that handled the insurance claims had standing to pursue attorneys fees for recovery of the workers compensation lien. Justice Richard Edelman forcefully argues that the law firm, which was neither a party, nor a beneficiary of the settlement agreement that was allegedly breached, was jurisdictionally barred from pursuing its claim for lack of standing, and that the trial court's judgment should be vacated for want of subject matter jurisdiction. The panel's majority, however, in an opinion written by Justice Frost, finds in favor of jurisdiction, reverses the trial court's judgment, and renders a take-nothing judgment on the merits.

Disposition: Reversed and Rendered
Majority Opinion by Justice Frost
Dissenting Opinion by Justice Edelman
Panel members: Justices Anderson, Edelman and Frost
Appellate cause no: 14-05-00851-CV
Style: Yasuda Fire and Marine Insurance Company of America, Sompo Japan Insurance Co. of America v. Miller Criaco D/B/A Criaco & Corteguera
Trial court: 405th District Court of Galveston County (Judge Wayne J. Mallia)

Legal lingo: standing, attorneys fees, PI-Auto, UIM coverage, insurance, workers compensation, enforceability of Rule 11 agreement, absence of express merger clause, breach of settlement agreement and release

Due Process Violated in Child Support Contempt Proceeding


Habeas Corpus Granted in Child Support Contempt Case Against Disabled Lawyer - Trial Court Violated Due Process in Dismissing Inability-to-Pay Defense as Irrelevant

In Re Brownhill (Tex.App.- Houston [14th Dist.] Jun. 7, 2007)(Edelman)(child support contempt

Fourteenth Court of Appeals, in an opinion written by Justice Edelman, holds that father's due process rights were violated when family court judge Lisa Millard denied him the opportunity to present evidence that he had a stroke, no income, no access to credit, and no ability to pay a judgment in excess of $40,000. Trial court would not allow obligor to attempt to establish inability-to-pay defense, characterizing it as "irrelevant." Court of Appeals declares the commitment order void and orders relator released.

Disposition: Habeas corpus relief granted
Opinion author: Justice Richard Edelman
Panel members: Justices Brock Yates, Edelman and Seymore
Appellate cause no: 14-07-00346-CV
Style: In Re: James Steven Brownhill
Trial Court: 310th District Court of Harris County (Judge Lisa A. Millard)

Terms: Houston family law cases, child support enforcement, affirmative defense of inability to pay, contempt, habeas corpus, due process, criminal contempt, inability to comply defense

Clarifying Order Must Be Consistent With Divorce Decree


Family Court Judge Exceeded Her Limited Power to Clarify Property Provisions of Final Decree of Divorce. Divorce court retains jurisdiction to clarify and enforce its prior order, but may not modify the property division.

Metzger v. Metzger Westbo (Tex.App.- Houston -1st. Dist.] Jun. 7, 2007)(Taft)(post-divorce suit for clarification order, limited continuing jurisdiction)

In this appeal from a post-divorce clarification order, the reviewing court, in an opinion authored by Justice Tim Taft, deletes certain elements of the order purportedly clarifying the provisions of a divorce decree, finding that they altered the substance of the underlying final decree, rather than merely adding specificity to aid enforcement. The divorce court may not revisit the property division and change it in a clarification order. To the extent property was omitted from the decree, a post-divorce partition suit is the proper vehicle. To the extent a dispute exists as to compliance with the mediated settlement agreement, the complaining party may pursue a breach of contract claim against the ex-spouse. The appellate court declines to set aside the mediation agreement as void.

Legal lingo: divorce decree, binding mediated settlement agreement, revocation and withdrawal of consent, property division, marital estate, separate property, community property, post-divorce partition suit, clarification order, continuing jurisdiction of court granting divorce

Disposition: Trial court judgment modified and affirmed as modified
Opinion author: Justice Tim Taft
Panel memers: Justices Taft, Alcala and Hanks
Appellate cause no.: 01-04-00893-CV
Style: Mark A. Metzger, Jr. v. Patricia Metzger Westbo
Trial Court: 247th District Court of Harris County (Judge Bonnie Hellums)