Geary H. Lee v. Elizabeth Deanne Holoubek, F/K/A Elizabeth Deanne Lee
06-15-00041-CV
Tex. Crim. App.Nov 17, 2015Background
- Geary H. Lee and Elizabeth Holoubek divorced (married 1974; separated 1988). A post-decree 1993 hearing orally awarded Holoubek 35% of Lee’s Texas Eastman retirement benefits but no written order/QDRO was entered and the matter was later dismissed for want of prosecution.
- Lee retired in February 2006, rolled retirement funds into brokerage accounts, and Holoubek later claimed she was denied her 35% share. The rollover included funds traceable to pre‑1988 (marital) service and post‑divorce contributions.
- Holoubek filed a new petition in 2012 seeking division of property not divided on divorce and recovery of her share; trial occurred April 30, 2015.
- Trial court found Holoubek entitled to $75,935.68 (including a $47,275.20 base share) plus $29,660.48 in compounded growth (5.56% over nine years), awarded attorney’s fees of $30,774.27 (based on a 40% contingency retainer), and imposed a lien on Lee’s Edward Jones accounts.
- Appellant (Lee) appealed, arguing (a) contingent attorney fees are improper in domestic relations/post‑decree matters and/or barred by res judicata given the 1993 disposition; (b) attorney’s fees awarded were unreasonable/unsupported; (c) the 5.56% growth figure lacks admissible evidentiary foundation; and (d) constructive trust/lien was improper absent fiduciary duty or other basis.
Issues
| Issue | Plaintiff's Argument (Holoubek) | Defendant's Argument (Lee) | Held (trial court) |
|---|---|---|---|
| 1) Award of contingent attorney’s fees | Contingent 40% retainer was necessary and customary; fees recoverable under Fam. Code §9.205 for post‑decree division | Contingent fees in domestic relations are rarely justified; fees improper here because property was already divided in 1993 and res judicata applies | Trial court awarded $30,774.27 to counsel (treated as payable to attorney) based on contingency arrangement |
| 2) Reasonableness/necessity of attorney’s fees amount | Counsel testified to substantial work, experience, local custom for 40% contingency, and expenses incurred | No detailed time/hours or customary local fee evidence; representation largely uncomplicated and short hearing — fee excessive | Trial court found fees reasonable and necessary and entered judgment for that amount |
| 3) Award of compounded growth ($29,660.48) | Presented commercial/market publication to justify 5.56% annual return over nine years; court admitted it | Publication admitted without foundational evidence or expert testimony; hearsay exception (market reports) not properly established | Trial court applied 5.56% and awarded compounded growth; appellant challenges admissibility and sufficiency |
| 4) Constructive trust / lien on Edward Jones accounts | Funds traceable to retirement rollover; lien appropriate to secure payment of judgment | No special/fiduciary relationship or wrongful taking; plaintiff’s neglect (failure to obtain QDRO) undermines equity; mere unpaid debt insufficient for constructive trust | Trial court imposed lien on accounts at Edward Jones to secure payment of amounts awarded |
Key Cases Cited
- Eggemeyer v. Eggemeyer, 554 S.W.2d 137 (Tex. 1977) (trial court must confine property division to community property and appellate review standard)
- Huie v. DeShazo, 922 S.W.2d 920 (Tex. 1996) (trial court has no discretion in legal determinations; conclusions of law reviewed de novo)
- Merrell Dow Pharmaceuticals, Inc. v. Havner, 953 S.W.2d 706 (Tex. 1997) (standards for legal/no‑evidence review)
- Tony Gullo Motors I, L.P. v. Chapa, 212 S.W.3d 299 (Tex. 2006) (American Rule primer: attorney fees recoverable only by statute or contract)
- Pool v. Ford Motor Co., 715 S.W.2d 629 (Tex. 1986) (factual sufficiency/reversal when finding is against great weight and preponderance)