Patient’s estate brought medical malpractice action against hospital and several of its staff members, relating to patient’s death in hospital two days after he was admitted to hospital with kidney stones. After jury returned unanimous verdict for defendants, the 192nd Judicial District Court, Dallas County, Merrill Hartman, J., granted, “in the interests of justice and fairness,” estate’s motion for new trial as to claims against two nurses and as to hospital as their employer. Hospital and nurses petitioned for writ of mandamus. The Dallas Court of Appeals, 290 S.W.3d 238, 2006 WL 1309583, denied the petition. Hospital and nurses petitioned for writ of mandamus. After briefing and argument, the trial judge was succeeded in office by another judge. The Supreme Court abated and remanded so successor judge could reconsider the order granting new trial. The District Court, Craig Smith, J., reaffirmed the prior order without setting out reasons for granting the new trial.

 The Court ruled that mandamus review was warranted, as to trial court’s order granting in part plaintiff’s motion for new trial in medical malpractice action, which order explained the trial court’s action only as being “in the interests of justice and fairness,” without further explanation of trial court’s reasons for setting aside jury’s verdict; mandamus petition presented significant issue regarding protection of state constitutional right to jury trial, absent mandamus review the defendants seemingly would have no appellate review of order granting new trial, and even if defendants obtained reversal of verdict after second trial such appellate remedy would be inadequate, because they would have lost the benefit of final judgment based on first jury verdict without ever knowing why, and would have endured the time, trouble, and expense of second trial. Vernon’s Ann.Texas Const. Art. 1, § 15.

In re Iliff, 2009 WL 2195559 (Tex. App. – Austin 2009, pet. Filed) – Austin Court of Appeals made the following finding (please note Dallas area residents do not live within the jurisdiction of the Austin Court of Appeals – we live within the jurisdiction of the Dallas Court of Appeals and hence follow slightly different law):

We likewise reject James’s argument that the trial court was required to find that his voluntary unemployment was for the primary purpose of avoiding child support before setting child support based upon his earning potential as opposed to his actual income. In support of this argument, James relies on the holdings of our sister courts of appeals in McLane, 263 S.W.3d at 362, and In re P.J.H., 25 S.W.3d 402, 405-06 (Tex.App.-Fort Worth 2000, no pet.). But this Court has declined to adopt the reasoning of our sister courts. In Hollifield v. Hollifield, 925 S.W.2d 153 finding that unemployment was but one of myriad factors a court could consider when exercising its broad discretion to determine child support obligations, this Court held that “[s]ection 154.066 does not require the court to consider whether the obligor’s ‘voluntary unemployment’ was for the primary purpose of avoiding child support.” 925 S.W.2d at 156. This Court’s holding in Hollifield is consistent with the plain language of section 154.066, and we decline to revisit that holding here. We overrule James’s first issue. 

The Court reasoned that Texas Family Code Section154.066 does not require that a reduction in income is for the ‘primary purpose of avoiding child support’ it’s merely one of the factor’s the Court can use in deciding and setting child support.

Dunham v. Spurgin, 245 S.W.3d 12 (Tex. App.-Dallas 2007, pet. filed) Here are the background facts:

            Burnett-Dunham and Spurgin divorced in December of 1967. The trial court awarded custody of the two children, who were six and eight years old, to Burnett-Dunham and ordered Spurgin to pay thirty dollars per week in child support until the youngest child reached the age of eighteen. After 1967, the court issued no further orders modifying child support payments. Not until March 21, 2006, when the children were in their forties, did Burnett-Dunham file a notice of application for judicial writ of withholding and a child support lien seeking $245,324.69 in unpaid child support. Spurgin filed a motion to stay issuance of the withholding contending the amount of arrearages was incorrect, the action was barred by section 157.005 of the family code, and the order was incapable of enforcement because it was ambiguous. He also filed a motion for release of the lien claiming sections 157.313 and 157.327 of the family code required the notice to include an order determining arrearages, which never occurred.

After a hearing on these two motions, the trial court determined section 157.327 was not available to Burnett-Dunham, and it did not have jurisdiction to determine arrearages. Thus, the trial court dismissed the notice of application for judicial writ of income withholding and the notice of child support lien.

The Dallas Court of Appeals ruled in favor of the father and affirmed the trial court’s judgment mostly by applying dormancy principles to judgments and the 10 year bar. It’s always interesting to read cases where I know three of the four lawyers as well as the presiding Judge at the time. Good advocacy on both sides of this case as well as the correct application of the law.

Thankfully, 153.315 was reincarnated that should fix this. This section was modified to include a student holiday or teacher in-service day as a holiday and to change the term “holiday” to “student holiday”. The purpose of this code section is to mirror the language used by most school district so the possession schedule makes sense. The problem parents were running into is that their stated Court Ordered parenting time was ambiguous because the language used in the possession schedule was different than that used by the school. The revised statute should go along way in avoiding future disagreements.