comparing husband’s position to the physician-spouse in Nail v. Nail, 486 S.W.2d 761, 764 (Tex. 1972), in which the supreme court concluded that the goodwill that the medical practice might have accrued at the time of the divorce was not property in the parties’ estate
How later courts described this case
- comparing husband’s position to the physician-spouse in Nail v. Nail, 486 S.W.2d 761, 764 (Tex. 1972), in which the supreme court concluded that the goodwill that the medical practice might have accrued at the time of the divorce was not property in the parties’ estate
- stating that, “without a proper valuation the trial court could not properly exercise its discretion in making a ‘just and right’ division of community property”
- noting that a large part of the firm’s reputation for providing services was built upon the professional abilities of the husband’s predecessors in the firm as well as the abilities of his present partners and professional employees
- noting that it is ―[w]ithout question [that] the goodwill of a long established firm has commercial value‖
Written by the judges who cited it.
The opinion
AKIN, Justice,
concurring.
Although I agree that the judgment should be reversed, I agree also with Justice Stewart that the goodwill of the husband’s law partnership should be considered in arriving at the husband’s interest in that partnership. Hence, I have joined in that opinion and concur in the result reached by the majority.
Apart from these grounds for reversal of the judgment, I would also reverse the judgment dividing between the parties the costs of two guardian ad litems, one for each of the parties’ minor children. In this respect, in my view but one guardian ad litem was needed, if any, because the interests of the two children were not in conflict, but rather parallel. Indeed, throughout this long trial both guardian ad litems were present but did nothing except submit bills for trial time on an hourly basis. Thus, I fail to understand why two were necessary to protect the interests of these children. Consequently, I would hold that the appointment of a guardian ad litem for each child was an abuse of discretion. Since the husband moved the court to appoint each of these guardian ad litems, I would assess the costs of each against the husband.
In my view, courts are often too free with litigants’ funds in appointing and in compensating unneeded guardian ad litems. Indeed, the guardian ad litem fees in this case were a significant sum with respect to the total community estate. Consequently, judges should appoint a guardian ad litem only where absolutely necessary to protect the childrens’ interests and then to exercise restraint on the guardian ad litems as to whether the time expended was necessary to protect the wards. In this case, the judge permitted both guardian ad litems to sit throughout the entire trial, even though neither participated and even though much of the testimony and trial time concerned matters other than the childrens’ interest. Nevertheless, each guardian ad litem was paid on an hourly basis as though each was actively engaged in a contested trial, which was not the case here.
Additionally, I fail to understand why the children’s interests in this case were not represented under the doctrine of virtual representation by either their mother or by their father, each of whom was represented by competent counsel. Oaklawn Preservation Society v. Board of Managers Dallas County Hospital Dist., 566 S.W.2d 315 (Tex.Civ.App.—Dallas 1978, writ ref’d n.r.e.). This doctrine is particularly applicable here since the record shows that each child’s interests were fully represented by each parent’s attorney. Accordingly, I would reverse also on this ground and assess all of the guardian ad litem fees to the husband who caused their appointment.
STEWART, J., joins in this opinion.