*1 provision, possible The “cease and desist” like the He makes inforcement of no-approach-unless-invited these, impossible. zone that Madsen else down, Madsen, 774, struck see 512 U.S. at McKenna, George On Abortion: A Lincolni- 2516, places speaker’s 114 S.Ct. freedom Position, Sept. 1995, Monthly, ATLANTIC mercy at communicate and consent of Petitioners, therefore, at 51, 61. Long ago, the audience. recog- Court wary of harm that anti-abortion violence nized that it is no less constitutionally infirm peaceful and clinic vandalism does to the speech for freedom of be subsequently advocates of their cause. initially revoked than withheld: reasons, For all of the above I concur in say To that he who is free to withhold at part part. dissent privilege publication will the of exercises a power censorship prohibited by the Con-
stitution, he who has unrestricted
power not, privilege to withdraw the does ignore history deny
would be to
teachings experience, per- as well as to
petuate evils which the First
Amendment was aimed.
584, 602,
City Opelika,
Jones v.
316 U.S.
J. Hudson SCHLUETER and Richard
1231,
(1942) (Stone,
62 S.Ct.
VI No. 96-1091. point I have one final to make. The court Supreme Court Texas. appeals below cited several incidents aggression vandalism and dur- occurred Argued 1997. Oct. period ing the petitioners staged time July Decided their demonstrations at abor Houston-area tion climes. See 937 S.W.2d 74-77. The Rehearing Oct. Overruled argument justifies that the end the means is law,
“a rule of all conduct denounced divine, being pernicious
human and
policy false morals.” Ex Parte Milli (4 Wall.)
gan, 71 U.S. L.Ed.
(1866). pa Such incidents have strained public justice
tience of the system and of the breaking point. Every
almost to the intimi
dating gesture or hateful utterance deafens public’s pro-life collective ear to dignity Every
about the of the unborn. act
of anti-abortion violence or clinic vandalism credibility pro-
devastates the moral message.
life Petitioners and other anti protestors
abortion do would well to heed regarding
Abraham Lincoln’s admonition
importance public sentiment: it, fail; it, nothing can
With noth-
ing can public succeed. Whoever moulds
sentiment, goes deeper than he who enacts
statutes, pronounces judicial decisions. *2 Jr., Alvis, Philip Friday,
Thomas M. C. Austin, for Petitioners. Algert, A. Kristen Clemens, Aus- Campbell, F. Mark W. John tin, Respondent. for Justice, GONZALEZ, delivered Court, ENOCH, in which opinion of the OWEN, BAKER, ABBOTT and Justices, HANKINSON, joined. ques case This answers the to a of what remedies are available tion community on com spouse alleging fraud spouse. The husband mitted to his various assets transferred filed for shortly father before he divorce. for divorce The wife counterclaimed against her brought independent tort claims father-in-law, seeking damages husband and fraud, duty, fiduciary and con breach jury findings, spiracy. on favorable Based disproportionate trial court ordered a favoring the division wife, for the wife judgment and rendered father for actual the husband his damages. Holding that a tort exemplary on the cause of action fraud proceeding, independent of a divorce exists appeals affirmed. 929 court of granted writ to resolve conflict 94. We appeals. among Because courts remedy for adequate has an wronged through “just on divorce, we upon right” property that there is hold spouses Accordingly, we reverse estate. judgment against date, At later husband re- court heard the for a mand new division of the marital jury, divorce action without divided the assets, We affirm the remainder of court of marital and rendered appeals’ judgment. jury verdict Mr. Schlueter and jointly $12,850. severally father *3 Fact, In Findings its of the trial court deter- I joint mined that the and several Richard and Karen in Schlueter married part community estate. The court 1992, In December Mr. Schlueter be- $30,000 also awarded Mrs. Schlueter in ex- gan investing in emus. He contributed $3250 emplary damages against her husband and pairs of funds toward of two $15,000 exemplary damages against in her birds, eventually sold his interest to his father-in-law, and awarded Mrs. Schlueter father, Schlueter, $1,000. Hudson for The $18,500 attorney’s from her for husband fees $10,000 emu business was worth at least appeal. when the sale occurred. Mrs. Schlueter did not know the of details the business and did appeals The court affirmed. The court not out find that her had husband sold his bring independent held that interest her father-in-law until after Mr. tort claim for fraud Schlueter filed for divorce. exemplary damages for which may be award- ed, when even the fraud in resulted Shortly divorce, before he filed for Mr. depletion assets not $30,360.41 and accepted Schlueter check from wronged spouse’s separate 929 employer his early as an incentive for retire- appeals 99-100. The S.W.2d at court of ment. Mr. Schlueter turned the cheek over holding abrogation based its on this deposit father Court’s his for in his father’s ac- interspousal immunity His doctrine count. father then wrote himself a check Bounds, Pnce, $12,565, decisions, Twyman allegedly past for to reimburse loans later, person may bring any and concluded that a to Mr. Schlueter. About a week Mr. spouse. cause of action his or Schlueter filed for divorce. Twyman (construing 929 at 99-100 S.W.2d Mrs. Schlueter counterclaimed 619, Twyman, (Tex.1993); 855 S.W.2d 624 added tort claims Price, (Tex. Price v. 732 319 S.W.2d fraud, her husband and father-in-law 1987); Caudle, and Bounds v. 560 S.W.2d duty, of fiduciary conspiracy. breach All (Tex.1977)). The appeals 927 court of of Mrs. Schlueter’s claims against her hus- also affirmed judgment against the fa- band depriv- and father-in-law involve their ther-in-law, holding that the court had ing the Sehlueters’ estate of as- in admitting abused its discretion into sets. Mrs. Schlueter makes no claim that copy evidence a of a involving divorce decree deprived separate property. she was of her Mr. Sehlueter’s brother. jury conspiracy The heard the fraud and Belz, Relying on Belz v. 667 S.W.2d jury trial. claims bifurcated found n.r.e.), (Tex.App. 247 writ ref'd that Mr. Schlueter committed actual and con- — Dallas Moore, Marriage and In re 890 S.W.2d dealing structive fraud with the communi- 1994, writ), (Tex.App. 829 assets, ty that he and his father had fraudu- — Amarillo alleges ap Mr. that the Schlueter court them, lently transferred assets between peals recogniz committed reversible error in they in a engaged conspiracy that had civil ing cause of for fraud on injure Mrs. jury Schlueter. The found that community. $12,850 Mr. Schlueter and his fa compensate would ther, error, only point in the father’s Mr. also Schlueter’s and father’s actions. It $35,000 appeals assert compensate would that erred found holding the trial abuse damage court did not caused the con- Finally, jury admitting copy into spiracy. found that Mr. discretion evidence $50,000 pay Schlueter should and his father the decree from Mr. Schlueter’s brother’s $15,000 in exemplary damages. divorce. personal before us is that all three involved
II
Twyman,
at
injury
claims.
reads
The court of
(intentional infliction of
dis
emotional
Pnce,
broadly;
decisions too
and Bounds
Price,
tress);
(negligence
S.W.2d
not control this case.
In
these decisions do
Bounds,
injuries);
personal
claim for
Bounds,
the inter-
we dealt with whether
death).
Cleaver
(wrongful
at 926
immunity
prevented a
spousal
doctrine
de-
Cf.
Co., Inc.,
George
Staton
suing
ceased woman’s children from
then-
denied)
(Tex.App. Tyler
471 n. 2
writ
stepfather
wrongful death.
for their mother’s
—
Bounds,
stepfather
Twyman, which involved out
(distinguishing
560 S.W.2d at
conduct,
allegedly
rageous
noting
shot
killed his wife. We
that the
spousal
had
interspousal immunity
out
husband’s
concluded
trial court could sort
*4
for willful or intentional torts.
fiduciary
be abolished
claims
for breach of
wife
policy perspective,
Id. at
From a
we
926-27.
in
duty
estate
the
and fraud on
intentional
division,
stated that suits for willful and
by separate
a
cause of
property
not
physical
the
in that case
action).
torts such as
attack
potential
the
for dou
discussing
In
in
disrupt
tranquility
“a
would not
domestic
pointed
recovery
Twyman,
in
the
ble
Court
to
already
home
been strained
the
which
recovery
personal injuries of a
out
that
point
physical
attack
where
intentional
including
suffering,
and
is the
spouse,
pain
place.”
could
Id. at 927.
take
injured
separate property
spouse,
the
and
to the marital estate.
does not add
therefore
Price
We re-examined the doctrine in
(Tex.1987).
Twyman,
(citing Tex.
Price,
589 properly is considered community. share. Such behavior Id. at 825-26. The court dividing a estate. when that Mr. Moore had breached fidu- found duty, damages against ciary and assessed allowing argues that Mrs. Schlueter separate the division of the marital him action for actual of voluntary re- Id. at 825. Absent a necessary exemplary is so that dam fraud damages by Mrs. Moore of the mittitur may intentional acts ages awarded for the duty, fiduciary of the court of breach However, spouse. height wrongdoer of the remand the trial court held it would change the does essen culpability ened property a new Id. at 843. division. wrong: deprivation tial of the character opposed as to a tort com assets correctly said: person sepa or his or mitted money judg- trial court [A] award discussed, “just As property. rate spouse, ment even as one right” accompanying with consider standard community. spouse’s on the spouse’s fraud on com wrongdoer ation However, type personal wronged spouses munity provides assets recouping the merely is a means for de- redress. More such as Mrs. Schlueter with share spouse’s frauded held, over, “recovery previously as have we property wrongdoing as a result lost finding punitive damages requires a spouse’s relationship. breach trust accompanying independent tort with actual recovery “sepa- is not Such awarded Davis, City damages.” Twin Fire Ins. Co. damages” rate for an cause of (Tex.1995); Federal Ex action. Dutschmann, press Corp. v. S.W.2d (citations omitted). (Tex.1993); Id. at 828 The court Amoco Prod. Co. Alex cf. (ex (Tex.1981) ander, concluded that the recourse available Mrs. Moore for Mr. breach fidu- plaining Moore’s action that in breach contract *6 ciary duty community malicious, intentional, was an to the estate if is or even breach community. action for on the Id. at not capricious, punitive damages recoverable tort). correctly 827. The of deter- in holding court our without a Because of independent cause of action independent mined that present the ease that there is no in separate damages exists to recover wrongful disposition Texas tort action for cause of wrongful assets, the act commu- community when defrauded the the by a of spouse nity may punitive Id. at 829. wronged spouse not recover damages spouse. other from the also
Trial courts have wide discretion However, despite inappropriate the many and are to take factors into allowed logical just right damages, a of it is a ex making punitive and divi ness consideration sion, 698-99, “just calls for Murff, tension a standard that a see 615 S.W.2d at includ of ing community right” allow the court wasting of assets. See Bar division deprived Kazen, spouse only the Property consider that a not bara Anne Division of Baylor Divorce, community Time of assets the detriment the L.Rev. (1997) spouse, may with (discussing may other have done so 424-28 factors that intent to deceive. effecting just dishonesty purpose a or by a trial court in considered Marshall, division). n. This too allows See Land v. right property (Tex.1968). culpability This is needed injured spouses Mrs. to recov the like Schlueter the which is fraud on appropriate share not actual er allegations by Mrs. Schlueter at the one of the property existing the Therefore, while we divorce, against Schlueter. but also that which was Mr. time tort separate independent es hold that a improperly depleted the accompanying actual fraud and community assets is similar tate. Waste of spouse damages against one’s do exemplary against husband here: allegations to the the consent, deprivation of the context of a knowledge not exist in the wife’s that without assets, spouse wronged if can the community of as wrongfully depleted the he culpability of actual prove heightened a Mrs. Schlueter entitled sets which fraud, may recovery, court trial consider it in the and we need not consider this ar- property division.1 gument. However, party penalized not be III taking appeal. Because successful we regard against With to the causes of action damages have reversed the against award father, Mr. argued Schlueter’s he Schlueter, Mr. we also reverse the award for these attorney’s appeal. fees on claims him as a third-party defendant reasons, all foregoing For we reverse Therefore, should also be abolished. we do appeals’ judgment against the court Rich- not reach that issue. We note that trial exemplary ard Schlueter for actual and dam- $12,850 judgment court’s damages of actual ages, attorney’s appeal, fees on and re- Schlueter’s Mrs. father-in-law was mand this cause to court the trial for a new awarded to the community estate. That property division. We affirm remainder
judgment represents an asset returned appeals’ court of judgment. estate, making monetarily it Therefore, court, just whole. the trial division, right dispro- not effect HECHT, Justice, PHILLIPS, joined by portionate property solely to make Justice, dissenting. Chief up formerly However, for that lost asset. I respectfully spouse dissent. If one as- already discussed,
we have court other, wronged saults can may take into account Mr. con- Schlueter’s not only disproportionate obtain share of defrauding duct that resulted in a but, proceeding if community estate. necessary compensate fully wrong done, and, for actual IV requisite showing, punitive damages noted, previously As both Mr. Schlueter wrongdoer.1 ap- The same rule father, only point and Mr. Schlueter’s in his plies spouse intentionally if one inflicts emo- error, assert the trial committed tional distress on or negligently the other2 in admitting reversible error evidence re- injures the other.3 But if one de- prior garding acts Mr. father Schlueter’s frauds other of an interest involving son’s divorce. We con- property, the wronged spouse’s sole redress *7 clude correctly that the has disproportionate is share the estate in a decided this issue. 929 at 97-99. proceeding. is the That Court’s only in this holding ease. The Court’s ratio-
V spouse treating different- nale for fraud on a Finally, Mr. complains ly Schlueter that is from intentional torts that fraud $18,500 injuries. the trial personal Why court’s award of to Mrs. does involve re- attorney’s appeal covery depend damages Schlueter for fees on was should whether on previ personal erroneous because the trial court had are Court economic the does not ously jury the explain, except say point instructed that it could consid to that at one “re- attorney’s part exemplary present er fees as case dress is available the without Therefore, damages separate award him. he the of a tort cause of action creation argues separate attorney’s spouses.”4 that a fees award But'the redress of a recovery. amounts to double disproportionate Because we division of the is exemplary damage causing personal have the equally reversed award available for torts him, injuries, yet is no possibility kept there double that has not the Court from (Tex. thorough Twyman 1.For discussion relevant to S.W.2d 619 of issues 2. case, Adams, 1993). Bradley this see L. The Doctrine of Community, Baylor Fraud on the L.Rev. 445, (1997). Price, (Tex.1987). 450-64 Price Caudle, (Tex.1977). Bounds v. S.W.2d 925 4. Ante 587-588. recovery go to the recovery punitive actual the fact that would providing for does wrongdoer an necessary fully the the damages compensate if which not, interest, Again, the wronged spouse. preclude The does indeed a fraud action. Court cannot, explain why partner’s an uneven of the same is true one suit partnership. inadequate defrauding estate is relief another for personal injuries adequate for any fraud. wrongdoer simply is denied benefit recovery. Any justification for Moreover, “the of a creation lie rule therefore in the nature Court’s must unnecessary. is It cause of action” for fraud relationship. there spousal But while necessary for a tort the Court create spouses allow to sue good reasons not to are of action intentional infliction of all, immunity historic is other at if that each one never emotional distress because had removed, held it as the Court has to be in Texas. But a cause of action for existed be, why is to see it should should it difficult is fraud has existed for centuries. All that of action removed some causes it necessary for to be asserted between and not others. interspousal spouses is for the immu- bar nity prevented spouse’s suing that one anoth- is whether Karen Sue The record unclear removed, already er to be and that has been compensation for can full Schlueter obtain repeatedly. today, done But that bar is res- community by her husband’s fraud replaced urrected and for one of claim— kind the estate. From uneven division of spouses why I see no fraud. reason appears findings, it district court’s assault, be allowed to sue each other for $122,600. If that had a value of estate net distress, intentional infliction of emotional divided, spouse evenly estate were each negligence, but not for fraud. $61,300. jury receive found would $47,- community’s damages were actual
The Court’s rule creates anomalies that $50,000 punitive damages I example, cast doubt on its For wisdom. husband, Karen’s Richard should be assessed suppose one can still sue other for half of Stephen Schlueter. His the communi- relating separate property and re- by ty damages than is less awarded damages any Only cover other case. Thus, com- jury. awarding Karen the entire when a defrauds other out munity fully compensate her estate would not recovery property is limited to a damages jury. The for the found proceeding. division of a divorce $42,- damages those Also, district court reduced to the extent such fraud inflicts emo- distress, entirely are not clear. 850 for reasons that wronged spouse tional will be share would still Richard’s anguish damages entitled recover mental enough those dam- not be to cover reduced punitive damages in excess of the com- percent. it at least 35 ages unless was directly munity against the But wrongdoer. wronged spouse’s economic Vickery v. is not an case. In This isolated must be satisfied from the wife, Vickery Vickery,6 Glenn deceived *8 exactly It to seems backwards me to allow Helen, a on the agreeing into to divorce recovery of anguish punitive full mental removing the com- pretense of her share of damages that definite but have no measure potential judgment munity liability from to a recovery damages limited of economic fact, immediately against him. In Glenn penny. be to the that can determined at- best friend and married Helen’s former large portion joint tempted in the to a Nothing nature of interest retain The precludes part- A for himself. district property a fraud action. ner, punitive damages example, Helen partner can sue another awarded actual Glenn, to an divi- injures partnership.5 Nor in addition uneven fraud (“A part- nership partnership harm to the Act] Ann.art. 6132b—4.05 that causes Tex.Rev.Civ.Stat. partners.”). part- other partnership or the is liable to a and the other ner agreement partnership ners for a breach of the duty partnership (Tex.App. [1st or for a violation of a to WL 6. 1997 751995 — Houston 1997, pet. pending). partners Texas Part- [the Dist.] under Revised 592 community.
sion of Applying covering the rule from husband on the same case, announced in present the Court fraud cause of action. Vickery. reverses the lower courts Be- Adopting approach, the Court’s estate, Vickery may of the size of the it judge simply will take the tortfeasor-spouse’s possible be complete for Helen to obtain conduct in dividing into account the commu- redress, although that is far from In clear. transferred, nity fraudulently estate. The event, any full compensation to Helen is not converted, community property or wasted is Court, matter of any concern to more rightly community through returned to the than compensation full to Karen Schlueter is. trust, resulting money judgment against strong preserve There were reasons to or, here, tortfeasor-spouse, judg- interspousal immunity from suit. There party. ment a third These reim- stronger were even reasons not to create a community property, bursed funds are tort of intentional infliction of emotional dis- tortfeasor-spouse proper- which the retains a tress and allow it be to asserted between ty interest. spouses.7 given But that the Court has con- While the trial court consider sistently rejected arguments against just tortfeasor-spouse’s actions in making a claims spouses, little reason survives division, right property sepa his or her justify to allowing for everything claims property rate not be will affected. I believe fraud, except perhaps enough enough. is spouse wronged that the to should be able If today’s that is the real rationale for deci- defrauding spouse’s separate prop reach the sion, simply it too late. I comes would allow erty punitive damages, recover addition one damages to recover from the a share of fraud actual community. on fraud Accord- See, on community. e.g., Mazique v.
ingly, I respectfully dissent. (Tex. Mazique, 742 S.W.2d 807-08 writ) App. [1st Dist.] — Houston SPECTOR, Justice, dissenting. (awarding money for actual and today The Court holds that punitive damages husband who had is not an tort for in community defrauded wife’s interest es which a defrauded can recover actual tate); Jr., Featherston, see Thomas M. also punitive Although damages. dispro- Property Marital Law —A Trusts & Estates portionate share of the Perspective, Tex., Bar State Advanced may serve appropriate remedy, as an I be- Family (1997) (citing 14 Law Course lieve that Karen Schlueter should be able to Mazique). punitive recover Schlueter the Richard punish damages wrongdoers Punitive jury as found well. Accord- example Transporta serve as an to others. ingly, I dissent. Moriel, tion Ins. Co. v. 17 S.W.2d today signifies Court’s decision a re- (Tex.1994); Lavender, Hofer abrogation interspousal treat from (Tex.1984). cases, duty “Our in civil Price, immunity doctrine in Price v. then, ... who is to ensure that defendants (Tex.1987). years Six after punished deserve to in fact receive Price, Twyman appropriate punishment....” level of Mor (Tex.1993), we stated that “there iel, imposition 879 S.W.2d at appears impediment legal bring- be no punitive very damages here would serve the ing a tort claim in a based on purposes they designed: for which were *9 negligence either or intentional act such punish wrongdoer and deter others from However, battery.” as assault while similar conduct. today Court affirms fraud father-in-law, context, partner In part- the Court never- a related in a prohibits nership punitive theless Karen Schlueter from re- recover C.J., (Phillips, concurring dissenting). 7. 855 S.W.2d 626 (Hecht, J., concurring dissenting); id. at 629
593 fiduciary partners for breach of their duty analogous to duty, a that owed Guenther,
spouses. v. 917 See Hawthorne 1996, 924, (Tex.App. 936 S.W.2d — Beaumont denied) (“An exemplary dam award of
writ is, therefore, finding
ages supported by a fiduciary duty partner’s breach of intentional.”) (citing Interna willful and Holloway, Ins. 368
tional Bankers Co. v. Life 567, (Tex.1963)); Miller v. 583-84 S.W.2d
Kendall, (Tex.App. writ) (finding Dist.]
—Houston [1st support punitive dam
sufficient evidence another);
ages partner against to one award Humphreys,
Cheek S.W.2d 1990, writ (Tex.App. [14th Dist.] — Houston
denied) (“Exemplary proper damages are fiduciary engaged in self-deal
where a
ing”) (citing Texas Bank & Trust Co. (Tex.1980)).
Moore, I to reach
see no reason a different result
the divorce context.
This Court is able fashion remedies to Gentle,
right wrongs. See Yamini v. 839, 843 (Tex.Civ.App. — Dallas n.r.e.) way (“[E]quity
writ ref'd leaves
open punish wrongs frauds and to redress
perpetrated means of in whatever may appear.”).
form it with this Presented
opportunity, today the Court fails to do so. BARNEY, INC.,
In re Relator. SMITH
No. 97-0423.
Supreme Court of Texas.
Argued Nov. 1997. July 3,
Decided
Rehearing Overruled Oct. Nobles, Cordell, Jeffrey T.
Thomas D. Frank, Rutter, Houston, P. William Kent McCabe, City, for Lawrence D. New York *10 relator.