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Archives for July 2013

Jul 27

Witnesses and Parties Should Be Respectfully Addressed in Court

In court, attorneys should properly refer to the parties and witnesses as “Mr. Smith “ or “Dr. Green” or “Ms. Olivares.”  Lawyers should not refer even to their own clients by just their first names in court.  Attorneys often seem to forget that formality and decorum and politeness (not to mention civility) are both expected in court and necessary to earn the proper respect court proceedings require.  Avoiding use of first names for witnesses and parties was also once a matter of basic civil rights.  Hamilton v. Alabama, 376 U.S. 650 (1964) is also remembered as the “Miss Mary” case.  At the time, black witnesses and defendants in courts in the South were called by just their first names, unlike white people who were referred to as Mr. or Mrs. or Miss. When Mary Hamilton was arrested at a civil rights protest in Alabama in 1963, the prosecutor referred to her as just ‘Mary’ and she refused to answer his questions until he addressed her with the same level of respect that was given to ... Read More >

Post in: Constitutional Rights, Trial, Witnesses

Jul 27

Maximum Guideline Child Support Increases 9/1/2013

On September 1, 2013, the cap on maximum monthly net resources used to calculate guideline child support in Texas will rise from $7,500 per month to $8,550 per month.  This means that the maximum guideline child support amount will go from $1,500 per month for one child to $1,710;  from $1,875 for two children to $2,137.50;  and from $2,250 for three children to $2,565 (assuming the obligor has no other children he or she is obligated to support).  Texas Family Code Section 154.125 requires the Office of the Attorney General to adjust the maximum amount of monthly net resources used to calculate guideline child support every six years based on increases in the consumer price index. ... Read More >

Post in: Child Support

Jul 13

Grandparents win “move away” modification case over only living parent who moved from Dallas to Washington because he had rejoined the military.

This case is a rare reported victory for grandparents in a fight for primary custody. In the Interest of Z.R.P. and D.A.P., No. 05-12-00134-CV (Tex. App. - Dallas 5/20/2013) ... Read More >

Post in: Child Custody, Grandparents' custody and visitation

Jul 13

A divorce decree cannot order a party who wants to file a modification to pay the other parent $25,000 on the date the modification is filed or face dismissal.

Unbelievably, the trial court followed this provision and dismissed the wife’s modification suit.  The San Antonio Court of Appeals did not reach the issue on whether this provision is void as against public policy and instead held that the provision violates Family Code Sec. 154.124(c) which says agreements concerning child support are not enforceable as a contract.  Since this provision limited the mother’s ability to seek modification of child support, it was not enforceable and the case should not have been dismissed. In re I.R.H. and Z.T.H., No. 04-12-00366-CV (Tex. App. - San Antonio 5/1/2013). ... Read More >

Post in: Child Support, Modification

Jul 13

Fishy facts support denial of mother’s motion for enforcement for failure to pay child support.

A 2004 paternity order required the father to pay $500 a month child support through the SDU and he clearly had made no payments to the SDU prior to April 2010.  So, how did the mother lose this enforcement suit?  The father testified that his signature on the “agreed” paternity order was forged and he testified he did not know he was ordered to pay through the SDU.  The father testified that the mother had agreed for him to pay support through direct deposit into her bank account or by use of his debit card.  The father introduced evidence of these deposits.  The mother should count herself lucky she was not sanctioned for bringing this enforcement action. In the Interest of K.S.H.U., No. 05-12-00448-Cv (Tex. App. - Dallas 5/21/2013). ... Read More >

Post in: Child Support, Enforcement

Jul 13

Modification default reversed because mother failed to present any evidence of changed circumstances.

This case shows that even in a default situation, counsel must still put on some minimal evidence that supports the requested modification. In the Interest of A.T.A.L., No. 05-11-01666-Cv (Tex. app. - Dallas 5/8/2013). ... Read More >

Post in: Default, Evidence, Modification

Jul 13

Dallas Court of Appeals allows a trial judge to deny a late filed motion to recuse and then proceed with trial before the administrative judge hears the motion to recuse.

Here, after switching attorneys three times and getting two continuances, the wife’s third request for a continuance was denied.  The wife’s new attorney told opposing counsel not to work over the weekend because he was going to file a motion to recuse.  Trial was set for 9:00 a.m. and wife and her attorney did not appear in the courtroom,  But, the wife at 9:08 a.m. filed a motion to recuse.  The trial judge denied the motion and started the trial.  At some point, the wife’s attorney appeared in the courtroom and he did not object to the trial going forward or ask for the evidence to be reopened for his client to present her case.  The administrative judge denied the motion to recuse two days later without a hearing.  The Dallas Court of Appeals acknowledged the general rule that a trial judge faced with a motion to recuse may only recuse or deny the motion and must refer the motion and get a ruling before proceeding on anything involving the case.  However, an exception is carved out ... Read More >

Post in: Judge Problems, Recusal

Jul 13

When a case is transferred from one county to another, the attorney must make sure the clerk copies and sends all important documents.

Here, a court in Montgomery County entered a paternity order in 2005.  In 2005, the mother’s ex-husband filed a modification suit seeking custody.  The mother was served and the father signed an affidavit of relinquishment of parental rights.  The case was transferred to Brazoria County and a default order was entered against the mother.  The mother filed a restricted appeal and got the order reversed because the clerk’s record from Brazoria County did not include the return of service on the mother.  The court of appeals said it could not consider the certified copy of the return from Montgomery County attached to the appellee’s brief.   In the Interest of K.M., No. 14-12-00871-CV (Tex. App. - Houston [14th Dist.] 5/16/2013). ... Read More >

Post in: Venue and Transfer

Jul 13

When an agreement incident to divorce is approved by the court and incorporated into the divorce decree, the agreement constitutes part of a valid and binding final judgment and is enforceable as part of the decree.

The agreement in this case included very large alimony payments to the wife and an agreement for the husband to pay the children’s college expenses.  The trial court awarded a judgment of $1,128,000 against the ex-husband and awarded $102,475 in attorney’s fees.  The few adjustments made to the judgment by the court of appeals did not reduce the ex-husband’s judgment and he almost certainly considers it a total loss.  One lesson: an agreement incident to divorce that is incorporated into the divorce decree is enforceable as part of the decree. Castro v. Castro, No. 14-11-01087-CV (Tex. App. - Houston [14th Dist.] 5/9/2013). ... Read More >

Post in: Agreement Incident to Divorce, Divorce, Enforcement, Property Division

Jul 13

Divorce court cannot award reimbursement to a spouse’s separate estate if the spouse did not trace her separate property.

Here, the wife’s separate estate  was awarded a $41,000 reimbursement claim against the community estate which the trial court used to reach a 60/40 property split.  The court of appeals held that the wife failed to prove $32,000 of that amount was her separate property and this required a reversal of the entire property division since the $32,000 represented about 20% of the entire net community estate. Roberts v. Roberts, No. 04-11-00554-CV (Tex. App. - San Antonio 5/1/2013). ... Read More >

Post in: Divorce, Property Division, Reimbursement, Separate Property

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