Sharyon Gathe v. Joseph C. Gathe, Jr.
376 S.W.3d 308
| Tex. App. | 2012Background
- Consolidated divorce actions filed in 2006; Judge Dempster presided and issued a 2009 divorce decree.
- Temporary orders in 2007 provided fixed expenses to each party for personal use.
- Bench trial in late 2008 granted the divorce and custody ruling but left property/issues undecided.
- Judge Millard granted Sharyon’s motion for new trial in 2009 on accounts receivable and children’s activities and reformed the judgment.
- Judge Stansbury in 2010–2011 limited the new-trial scope to accounts receivable and later entered a February 7, 2011 decree awarding 50% of the accounts receivable to each party.
- Sharyon appealed the 2011 decree contending the trial court erred in scope, findings, property/divorce sufficiency, and improper judgment date.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Scope of the new trial | Gathe | Gathe | Partial new trial rendered interlocutory; final judgment not reached |
| Findings of fact and conclusions of law | Sharyon | Gathe | Improper lack of explicit findings; need for/failure to issue findings |
| Sufficiency of evidence for property division | Sharyon | Gathe | Evidence insufficient to support 2011 property division and divorce grant |
| Sufficiency of evidence for divorce | Sharyon | Gathe | Insufficient evidence to sustain divorce under record evidence and procedures |
| Recitation of judgment date | Sharyon | Gathe | Incorrect recitation of November 14, 2008 as judgment date; decree was not final then |
Key Cases Cited
- Demler v. Demler, 836 S.W.2d 696 (Tex. App.—Dallas 1992) (cash benefits exception to acceptance of benefits doctrine)
- Waite v. Waite, 150 S.W.3d 797 (Tex. App.—Houston [14th Dist.] 2004) (acceptance of benefits; exceptions and estoppel framework)
- Sprague v. Sprague, 363 S.W.3d 788 (Tex. App.—Houston [14th Dist.] 2012) (acceptance of cash benefits exception to doctrine)
- In re Baylor Medical Ctr. at Garland, 280 S.W.3d 227 (Tex. 2008) (plenary power to set aside new-trial orders; reinstatement requires new judgment)
- In re Dep’t of Family & Protective Servs., 273 S.W.3d 637 (Tex. 2009) (new-trial effects wipe original judgment; reinstatement requires new judgment)
- Markowitz v. Markowitz, 118 S.W.3d 82 (Tex. App.—Houston [14th Dist.] 2003) (new trial vacates judgment; case returns to docket)