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Vickery v. Vickery5/27/1999
On Petition for Review from the Court of Appeals for the First District of Texas
Justice Hecht, Dissenting from the denial of the petition for review.
The lower courts in this case awarded mental anguish damages and punitive damages to one spouse for the other's fraud in the division of their marital estate, and awarded mental anguish damages against an attorney for breach of her fiduciary duty to her client. These awards are not permitted under two of this Court's opinions that have issued while this petition for review has been pending. In Schlueter v. Schlueter, the Court held that "a separate and independent tort action for actual fraud and accompanying exemplary damages against one's spouse do not exist in the context of a deprivation of community assets". In Douglas v. Delp, we held that mental anguish damages cannot be recovered for legal malpractice if plaintiff's loss is entirely economic. If the holdings of Schlueter and Douglas were applied to the same issues in this case, the petition for review would have to be granted, the court of appeals' judgment reversed, and the case remanded to the district court for further proceedings. But the Court simply refuses to follow Schlueter and Douglas in this case that has been pending while those cases were being decided. The Court would not tolerate a lower court's refusal to follow our decisions, nor should it, yet the Court will not follow its own decisions in contemporaneous appeals involving the same issues. It is awfully hard to insist on others' adherence to the rule of law when one's own commitment to the rule is, shall we say, intermittent. I would grant the petition for review in this case because I cannot see that Schlueter and Douglas leave any principled alternative. Accordingly, I respectfully Dissent.
Mrs. Schlueter complained in her divorce proceeding that her husband had diverted to his father $12,565 in cash and an emu business worth $10,000 to avoid having these assets included in the couple's $122,600 community estate to be divided by the court. Based on the jury's findings that Mr. Schlueter had defrauded the community estate and conspired with his father to harm Mrs. Schlueter, the district court rendered judgment that the community recover $12,850 from Mr. Schlueter and his father, jointly and severally, and that Mrs. Schlueter recover $30,000 in punitive damages and $18,500 in attorney fees from her husband, and $15,000 punitive damages from his father. The court of appeals affirmed. This Court reversed, holding that one spouse's fraud on the community estate could justify an unequal division of the estate but that "there is no independent tort cause of action for wrongful Disposition by a spouse of community assets". The Court added:
"while we hold that a separate and independent tort action for actual fraud and accompanying exemplary damages against one's spouse do not exist in the context of a deprivation of community assets, if the wronged spouse can prove the heightened culpability of actual fraud, the trial court may consider it in the property division."
The petition for review in the present case was filed almost four months before Schlueter was decided, and the Court was well aware of the similarity of the issues in the two cases. I specifically mentioned this case in my Dissent to show that Schlueter was "not an isolated case." The circumstances of this case, as depicted in the evidence supporting the jury's verdict, present an even stronger argument for recovery that those in Schlueter. Mr. Vickery, an attorney, misrepresented to his wife that they needed to divorce to protect their community estate from liability to a former client suing him for malpractice.
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