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Archives for April 2013

Apr 30

The Ultimate Property Division Spreadsheet

Click here to download my Inventory comparison chart. Two years ago I put on a half day seminar for about 300 lawyers called the "Ultimate Property Division Seminar."  I talked to a lot of judges about what they wanted and did not want to hear in a property division trial.  Here is the one thing they all wanted -- a unified spreadsheet which shows both parties' values and proposed divisions and which provides space for the judge's ruling. This ideal spreadsheet can only be prepared after you have both spouse's proposed values and divisions.  The spreadsheet has to be printed on very wide ledger size paper (or two letter size pages taped together) and has columns for: -- Asset/Debt -- Husband's Proposed Value -- Wife's Proposed Value -- Court's Value (blank - for judge to fill in) -- Husband's Proposed Division -- Wife's Proposed Division -- Court's Division (blank) The spreadsheet also shows the differences between the parties on what is separate property.  I color ... Read More >

Post in: Divorce, Property Division

Apr 28

Trial cannot proceed with just 11 jurors unless the juror is stricken because he or she is constitutionally disqualified

A trial court should declare a mistrial if a juror realizes during the trial that he knows some of the people involved in the case and thus might be impartial.  It violates the constitutional right to a jury trial to proceed with 11 jurors absent agreement of the parties unless the juror is disqualified within the meaning of the Texas Constitution (physical or mental incapacity of the juror, not caring for a sick family member and not realizing he or she might be biased).  In re M.G.N., 4th Court of Appeals, 04-12-000108-CV, 4/24/2013. ... Read More >

Post in: Jury Trial, Trial

Apr 28

Divorce decree without step-down language terminated child support when “any” child turned 18, even if the younger child was still a minor and still in high school

This 1993 divorce involved two children, yet the decree ordered the father to pay child support, “...until the date of the earliest occurrence of one of the following events: a.  any child reaches the age of eighteen years,... b. any child marries...”  There was no step down provision that said “thereafter he pays $xxxx.xx until...”    Judge Farr and then the First Court of Appeals ruled that the decree means what it says and the father’s child support obligation ended in 2003 when the oldest child turned 18 even though the younger child did not turn 18 until 2008.  Thus, the trial court properly denied the mother’s request to confirm a child support arrearage for payments due after 2003.  Smith v. Goodrum, 1st Court of Appeals, 01-11-00784-CV, 4/18/2013.  Moral: always include the full step-down provision in child support orders. ... Read More >

Post in: Child Support

Apr 28

Attorney cannot intervene for fees after judge approves MSA and renders judgment

This case involves our colleague, Julia Maldonado, who represented the wife at mediation where the parties settled then at the prove up where the judge approved the agreement.  Maldonado then filed a motion to withdraw, which was granted, and then attempted to intervene for her fees.  The trial judge granted a motion to strike the intervention.  Held: an intervention filed after judgment, including after rendition of judgment, is not timely.  Maldonado v. Rosario, 1st Court of Appeals, 01-12-01071-CV, 4/2/2013. ... Read More >

Post in: Attorney's Fees, Intervention, Trial

Apr 28

The trial court did not abuse its discretion by conducting a two day divorce trial in April 2009, then abating the trial while IRS tax issues were resolved and then making a rendition of the divorce in November 2010 based on a cut off date of April 1, 2009 for characterizing and valuing property

The wife who complained about this unusual procedure did not complain to the trial court at the time until she filed a motion for new trial after rendition and judgment.  The court of appeals ruled that by participating in this procedure without objection, the wife waived any complaint on appeal.  This case reminds us that objecting to a trial court ruling for the first time in a motion for new trial may be too late.  TRAP 33.1(a)’s  requirement that a complaining party on appeal must show he or she  “made proper, timely and sufficiently specific objection or request in the trial court and obtained a ruling” is often not satisfied by waiting until the motion for new trial to object.  Richard v. Towery, 1st Court of Appeals, 01-11-00132-CV, April 18, 2013. ... Read More >

Post in: Divorce, Property Division, Trial, Valuation

Apr 28

A spouse is entitled to an offset against the value of a community property business for the value of separate property assets contributed to the business

Hooray for the attorney who cites a case from 1889 and wins!  Perhaps we all should review Schmidt v. Huppman, 11 S.W. 175 (Tex. 1889), which held “Where it satisfactorily appears, as in this case, that one spouse brought into the partnership separate funds invested in a particular business, which business was carried on and the profits arising therefrom used in creating and building up the community estate, and the separate funds are employed in the same business at the dissolution of the partnership, upon settlement with the community estate we think the spouse furnishing such separate funds is entitled to reimbursement therefore.”  At the trial of this divorce, 123 years after the Schmidt v. Huppman case was decided, the husband proved that his sole proprietor law firm on the date of marriage had $383,233.35 in accounts receivable, $175,391.70 in unbilled time for work in progress, $5,000 in furniture and fixtures, $22,003.74 in accounts payable and $95,307.40 in accrued payroll.  ... Read More >

Post in: Business Valuation, Divorce, Property Division

Apr 27

A party can do his own tracing of separate property!

This case stands for the proposition that a party (in this case, the husband) can do his own tracing of financial accounts to prove how much is separate property.  In this case, the husband was an attorney and a CPA.  There was no objection to his qualifications made to the trial court.  The court of appeals reviewed some very complex financial account tracing and approved what the husband calculated.  It certainly seems logical that if we allow a party to testify about the value of his house without being a real estate appraiser, that we should allow a party to testify about tracing as long as the methodology is explained and is proper.  Richard v. Towery, 1st Court of Appeals, 01-11-00132-CV, April 18, 2013.  Another case decided this month by the San Antonio Court of Appeals is another example of a party tracing (or trying to trace) his own separate property.  Unfortunately, this is also a great example of how not to trace and what evidence is insufficient to prove separate ... Read More >

Post in: Divorce, Evidence, Tracing Separate Property

Apr 27

How NOT to show failure to supplement when trying to strike evidence not supplemented 30 days before trial

The wife’s objection to financial documents which she said had not been produced at least 30 days before trial was properly overruled by the trial court because the wife did not show to the trial court that: (1) her discovery request specifically asked for the document, and (2) the objection to the wife’s production request made by the husband was not ruled on by the trial court.  Also, the husband’s attorney said that his response stated the documents were available at his office for inspection and the wife’s attorney never came to look at them.  The wife would have had to prove that the documents were not really made available for inspection.  Part of the moral to this story is that discovery requests and responses are not filed with the clerk, so a party who objects to evidence that was not disclosed in discovery must get the discovery request and response into the record, either as an exhibit in court or at least as an attachment to a motion to compel.  This case also says that if ... Read More >

Post in: Discovery, Trial

Apr 27

Error to disqualify an attorney because he is a witness unless he is the only witness to specific events, i.e. – necessary to establish an essential fact.

Here, in this divorce action in Fort Bend County, the wife’s lawyer took her to a bank to open an account and oddly took photographs to document the event, the attorney hired the wife to work in her office in spite of pleading the wife was unable to work, and the attorney helped the wife “financially or otherwise” with her psychological treatment.  The court of appeals noted,” The hearing record reflects that there is no evidence that relator’s attorney is the only person in possession of facts regarding these allegations.  Thus it was not shown the testimony of relator’s attorney is necessary to establish an essential fact.”  The court of appeals also concluded there was “no evidence that actual prejudice would result if the attorney does testify as a fact witness.”  Mandamus granted.  In re Stone, 14th Court of Appeals, 14-13-00311-CV, 4/19/2013. ... Read More >

Post in: Attorney Disqualification

Apr 18

Texas Supreme Court Clarifies Rule That Allows a Property Owner to Testify About the Value of His or Her Property

by Greg Enos It has long been the rule in Texas that the owner of a property can testify as to the property’s value even if the homeowner cannot qualify as an expert witness. Mata v. Mata, 710 S.W.2d 745, 758 (Tex. App.— Corpus Christi 1986, no writ). The Texas Supreme Court in December 2012 limited that rule and held that the property owner must explain the basis for his or her opinion as to value. Natural Gas Pipeline Co. of America v. Justiss, __ S.W.3d __ (Tex.12/14/2012 - 10-0451), was a nuisance suit for damages, not a divorce. However, the rule articulated by the Texas Supreme Court should apply in divorce cases when a spouse testifies what the family house or a car or a business or the personal property is worth. In such a situation, the spouse must also explain what that opinion is based on. The Supreme Court stated: Because property owner testimony is the functional equivalent of expert testimony, it must be judged by the same standards. Thus, as with expert ... Read More >

Post in: Property Division

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