Reprinted from the November 14, 2014 Mongoose newsletter. Some judge named "Pratt" was just reversed in Reddick v. Reddick, No. 01-12-00576-CV (Tex. App. - Houston [1st Dist.] 10/23/2014). This case is an excellent reminder that not every parent who could in theory earn more should be found to be intentionally underemployed. Click here to read the entire case, which provides this summary of the law: A parent who is qualified to obtain gainful employment cannot evade his or her child support obligation by voluntarily remaining unemployed or underemployed. Concurrently, the court must consider a parent's right to pursue his or her own happiness with a parent's duty to support and provide for his or her child. The court must engage in a case-by-case determination to decide whether child support should be set based on earning potential as opposed to actual earnings. Once the obligor has offered proof of his or her current wages, the obligee bears the burden of demonstrating ... Read More >
Archives for December 2014
Three New Associate Judges
Reprinted from the November 14, 2014 Mongoose newsletter. Harris County family court judges-elect have announced who their Associate Judges will be. So far Judge Dean and Judges-Elect Prine and Schmude have announced their picks. John Schmude has selected Paula Vlahakos to be the next Associate Judge of the 247th District Court. Vlahokos got her J.D. from South Texas in 1998 and was licend in 1999. She worked for Short Jenkins Kamin from 1999 until 2007 and for Short Carter Morris since 2007. This first major decision by Mr. Schmude should give us all even more confidence in his good judgment. Schmude is going to be assisted by a very experienced and smart attorney and not a political hack. Prior to becoming an attorney, Vlahakos worked as the legislative coordinator for Service Corporation International and later as the community outreach coordinator for The Children's Assessment Center/Harris County Children's Protective Services. Paula has also taught at Houston ... Read More >
My Letter to the District Attorney About Gary Polland
Reprinted from the November 14, 2014 Mongoose newsletter. Now that the election is over, I have written District Attorney Devon Anderson's Public Integrity Unit about Gary Polland. Similar letters send by me in the past led to the indictment of Judge Dupuy and the forced resignation of Judge Pratt. The actions of Mr. Polland are particularly important because of his influence with judges as the former Republican Party Chair, one of the "Big Three Endorsers" who dominate local GOP primaries and as a Houston television personality (on Channel 8 at least). This is what I wrote to the D.A.: I attach documents relating to attorney Gary Polland and what I contend are false pay vouchers he submitted to the county for work he did as a lawyer appointed on CPS cases. I believe that the crime of tampering with a government record may have been committed. I am providing you: 1. A legal article that establishes that a court appointed ad litem in a CPS case cannot bill the ... Read More >
Clients Are Confused Over “First Friday” Versus “First Weekend”
Reprinted from the November 5, 2014 Mongoose newsletter. Clients and former clients have already started calling about arguments over which parent has possession of the kids this coming weekend. Most people think last weekend was the first weekend of November and yet last weekend started with Friday, October 31. Our clients need to be reminded that weekend visitation is based on Fridays - 1st, 3rd and 5th. Expect a few emergency calls Friday and some enforcements to arise out of this coming weekend. In 2015, January, May, July and October have five Fridays. That means a parent with visitation under a standard possession order will have three weekends in those months and have two weekends in a row when the fifth Friday of one month is followed by the first Friday of the next month. Your clients will appreciate it if you forewarn them about these calendar anomalies. Next year, the parent with visitation rights, for example, should carefully consider that July gives him ... Read More >
Attorneys Cannot Bill Clients for Motions to Withdraw
A lawyer cannot bill her client for the time spent preparing a motion to withdraw from the client's case. Lee v. Daniels & Daniels, 264 S.W.3d 273, 278 (Tex. App.-San Antonio 2008, pet. denied). In that case, the attorney's engagement letter said the client would,"pay for all time spent, costs and expenses incident to withdrawal as attorney of record to include, but not limited to, airfare, mileage, motel, and lodging." The Court of Appeals held: Daniels [the attorney] sought reimbursement for all time spent in his efforts to terminate his attorney-client relationship with Cummings [the client] including time spent adversarial to his own client. None of that time was spent engaged in " legal services" performed or rendered on behalf of Cummings, his client. Instead, Daniels spent that time engaged in services performed for his own benefit. No lawyer could form a reasonable belief that time spent adversarial to the client and in pursuit of the lawyer's own interests is the ... Read More >
The “No Shame, No Consequences” Power Trip
Reprinted from the October 23, 2014 Mongoose newsletter. Attorney Doug York is taking cases in the court where his fiance, Judge Alicia Franklin, presides. If you want a case out of the 311th, York is the attorney to hire. Both York and Franklin should have enough sense and ethics to realize that York should simply not accept cases that are already pending in the 311th, especially those cases where Franklin has already heard something or where there is already a hearing set. Franklin should not automatically recuse herself in cases where York allows himself to be hired knowing the case is in his wife-to-be's court. In Cause No. 2004-02532, Sheikh v Sheikh, a final divorce decree was entered in the 311th in March 2005. The ex-wife's attorney, Scott Boyd requested a writ of execution on July 18, 2014 to try to collect on the 2005 divorce judgment. In September 2014, a Fort Bend Constable seized a house belonging to the ex-husband worth about $152,000. The ex-husband hired a ... Read More >
A Business Owner May Testify as to the Company’s Value as a Fact Witness
Reprinted from the October 23, 2014 Mongoose newsletter. A business owner, including a shareholder of a closely held corporation, can testify as to the company's value and does not have to be designated as an expert witness. Red Sea Gaming, Inc. v. Block Investments (Nevada) Co., 338 S.W.3d 562 (Tex. App. - El Paso 2010, pet. denied) is an opinion by Justice Anne McClure, which mostly quotes cases from the Houston 14th Court of Appeals and states in part: A property owner is qualified to testify to the market value of his property. Redman Homes, Inc. v. Ivy, 920 S.W.2d 664, 669 (Tex.1996). The testimony must indicate that the owner's assessment is based on the market and not on the intrinsic value of the property to him. Jabri v. Alsayyed, 145 S.W.3d 660, 667 (Tex. App. - Houston [14th Dist.] 2004, no pet.). Most recently, the 14th Court of Appeals concluded that the property owner rule applies to corporate entities owning property and that a representative of the corporate ... Read More >
When Is It Too Late To Enforce Temporary Orders?
Reprinted from the October 23, 2014 Mongoose newsletter. Typically, a temporary order expires with the entry of a final judgment. Coleman v. Texas State Dep't of Welfare, 562 S.W.2d 554, 556 (Tex. Civ. App.--Tyler 1978, writ ref'd n.r.e.). However, the general rule is that the rendition of a divorce decree does not itself nullify any temporary order. Pettus v. Pettus, 237 S.W.3d 405, 416 (Tex. App. - Fort Worth 2007, pet. denied), Ex parte Shaver, 597 S.W.2d 498, 500 (Tex. Civ. App. - Dallas 1980, orig. proceeding); Villarreal v. Villarreal, No. 14-04-00071-CV (Tex. App. - Houston [14th Dist.] Nov. 23, 2005, no pet.)(mem. op.). Temporary orders can be enforced after entry of the final decree of divorce unless the decree itself discharges the parties from obligations under the temporary orders. Ex parte Shaver, 597 S.W.2d 498, 500 (Tex. App. - Dallas 1980, no writ). The Texas Family Law Practice Manual provides these two different options for a divorce decree regarding ... Read More >
Family Judges Resist Reform
Reprinted from the October 23, 2014 Mongoose newsletter. The Board of Family Judges met and decided not to follow the example of Judges Farr and Hellums regarding CPS ad litem appointments and fees. The most the judges could agree to do was require ad litems to clearly state on their fee applications if any of the work was done by someone else. Click here to see the administrative order that will apply to all CPS cases in the nine family courts in Harris County. So, the politically connected favorites will still get a lot of appointments in some courts and they will be allowed to bill the county for work done by associates and social workers despite the fact it does not appear to be legal for them to do so. Reform and change will not always happen as fast as it should, but the fight goes on! ... Read More >
Polland Reads the Mongoose!
Reprinted from the October 23, 2014 Mongoose. Gary Polland at least reads The Mongoose. Polland once almost always billed 5.0 hours for every single home visit that someone in his office did. Now, after I reported that odd fact, Polland has started billing in less round, less easy to question amounts. In Cause No. 2014-41117, Polland submitted an invoice to Judge Lombardino claiming that Polland spent 4.2 hours on August 29, 2014 for a home visit with the mother and to prepare a report. The attorney for the mother e-mailed me to say: Pollard did visit with my client on August 29, 2014 (Friday) from about 4:45 to about 5:15 p.m. [30 minutes total] .... I have a tape recording of the home visit.... The drive according to MapQuest (59 to 45 south. Freeway miles) from Polland's office to my client's home is 8.12 miles -- about 11 minutes. Pollard billed 4.2 hours for 8/29/2014 --that is impossible. ..... Gary's report [on the home visit] was about two pages long and he had ... Read More >
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