This lengthy case addresses many diverse issues, including divorce jurisdiction over Mexican citizens who own a home in San Antonio and whose son attends school there and includes numerous examples of how not to object or preserve error regarding jury questions or evidence. However, this case also provides another example of a trial court pretending a spouse has a phantom asset when a large cash payment cannot be explained. The husband owned a business along with a friend. The friend invested $195,737.23 and the husband soon thereafter withdrew $195,000 and even the company’s accountant could not explain the transaction. The trial court valued the husband’s interest in the business as if the unexplained withdrawal had not happened and included the $195,000 as a separate asset for the husband. The court of appeals held that the trial court did not abuse its discretion in doing so. Nieto v. Nieto, No. 04-11-00807-Cv (Tex. App. - San Antonio 5/1/2013). ... Read More >
Interesting example of how a court can divide assets that were not awarded in the original divorce.
The parties were divorced in 2002 and the court’s property division then was 63% to the wife. Eight years later, the wife filed a petition seeking post-divorce division of two pieces of land and some mineral rights that had not been awarded in the divorce decree. This time, the trial court made an overall 50-50 division of the property including what was originally awarded and the undivided assets. The wife on appeal complained that she should have been awarded 63% of the newly discovered assets. The court of appeals held that the trial court was not bound by the property division ratio it used in the original divorce and the trial court did not err in using the 2002 values for the land instead of the 2011 values. Harton v. Wade, No. 12-12-00158-CV (Tex. App. - Tyler 5/22/2013). ... Read More >
Detailed discussion of the acceptance-of-benefits doctrine which commonly arises in divorce cases when a former spouse accepts certain assets awarded in the judgment but then tries to appeal the remainder of the judgment.
An appellee bears the burden of proving that an appellant is estopped from challenging the judgment by appeal under the acceptance-of-benefits doctrine. When the doctrine applies, an appeal is rendered moot and the appeal should be dismissed. The doctrine does not apply when (1) acceptance of the benefits is because of financial duress or other economic circumstances, or (2) the reversal of the judgment on the grounds appealed cannot possibly affect an appellant’s right to the benefits accepted under the judgment. The appellant bears the burden to prove an exception applies. Here, the wife was awarded the 2005 Lexus and the husband was ordered to pay the car note on the Lexus. The wife tried to appeal the division of community property but during the appeal she sued her ex-husband in justice of the peace court claiming he had “sold her the car” but failed to pay for it. The wife’s appeal was dismissed because of the acceptance-of-benefits doctrine after a very detailed ... Read More >
Land acquired with wife’s separate property but deeded to husband and wife was not a gift of a 50% interest to the husband.
This case shows how to overcome the presumption that when a spouse uses separate property to acquire land during the marriage and takes title to the land in the names of both the husband and wife, it is presumed that the interest given the non-purchasing spouse is a gift. Here, a trust was established in favor of three sisters, one of whom was the wife in the divorce case. The 23 acres was conveyed from the trust to the wife and husband and the husband claimed he owned a one half separate interest in the land. Each sister was deeded land from the trust and each deed recited that the sisters were giving up their separate interests in those properties. The trial court awarded it all to wife as her separate property. The court of appeals affirmed the trial court’s ruling and held: (1) the husband had the burden to prove he owned one half of the land as his separate property [it is not clear why the wife did not have the burden to prove it was all her separate property]; (2) the ... Read More >
This father did not have a prayer! Ordering a father to give up a few hours on every one of his Sunday mornings so that the mother can take the children to religious education does not violate the Establishment Clause of the First Amendment.
The San Antonio Court of Appeals found that giving the father a few extra hours on Sunday evenings made interrupting his weekends every Sunday morning for the mom’s religious preferences acceptable. Stop and think about this -- the father cannot ever leave town over a weekend because the mother gets three hours of possession of the kids every Sunday morning. Why? To accommodate one parent’s religious beliefs! How can that not be giving one parent’s religious beliefs priority over the other parent’s beliefs? What if Dad has a church he wants to take the kids to on Sunday mornings or what if he is an athiest? Rosenstein v. Rosenstein, No. 02-09-00272 (Tex. App. - Fort Worth, 8/11/2011)(mem. op.) should have decided this case but it was distinguished because the father here gets to keep the children until 9 pm on Sundays. This decision does not even address Knighton v. Knighton, 723 S.W.2d 274 (Tex. App. - Amarillo 1987, no writ). In Knighton, it was held: These constitutional ... Read More >
Judicial candidates in Galveston County
Galveston County will very likely complete its transition to being a county with all Republican judges next year and the few Democratic incumbents know it. Here is the breakdown of who is running or not running: 306h Family District Court - Judge Jan Yarbrough is expected to retire but she is not officially confirmed she will not seek reelection. Anne Darring and Jennifer Burnett are the only announced candidates on the Republican side. 212th District Court - Incumbent Judge Susan Criss has already said she will retire. Now, it is rumored that she may well resign this Fall to run for the State Representative seat being vacated by the retiring Craig Eiland. That district is clearly winnable by a Democrat and Criss would be trying to follow in the footsteps of her father, former Rep. Lloyd Criss. A Criss resignation would allow Governor Perry to appoint someone to fill out the term. The appointee would become the de facto incumbent and have big advantage in the 2014 ... Read More >
The crime of witness tampering
The crime of tampering with a witness applies to both civil and criminal cases and can involve either offering or providing "any benefit" to the witness or acting to coerce a witness. Witness tampering can involve influencing a witness to testify falsely, influencing a witness to avoid testifying or influencing a witness to not press criminal charges. "Any benefit" is a very broad term and could include promises of money, assistance with a lawsuit or helping covering the costs of a move or vacation. Case law summarized below shows that it does not take much to be considered coercion. All lawyers should be very careful in dealing with witnesses, especially those witnesses who are crazy, who have a history of making false allegations or who tape record the promises and threats they receive about their testimony. The best practice is to tell any potential witness,"I just want you to tell the truth," early and often. Section 36.05 of the Texas Penal Code states in part: Sec. ... Read More >
Trey Apffel Elected State Bar President!
Trey Apffel of League City won the run-off to be the State Bar of Texas President-Elect. It is awesome to see such a good thing happen to one of the planet's truly fine human beings (and a great attorney). Trey was in the middle of a medical malpractice jury trial in County Court No. 3 when Judge Dupuy was indicted and arrested. The judge called the lawyers to the bench right after lunch and indicated he had to be gone that afternoon and might not be able to go forward the next day. Sure enough, the judge had some other business to attend to and a mis-trial was declared. ... Read More >
The Texas Constitution Has Two Guarantees to the Right to a Jury Trial
I recently argued to Judge David Farr that the amount of reimbursement due the community estate is not a jury question because reimbursement is once again an equitable remedy and historically, juries were not used in courts of equity. Judge Farr went with the Pattern Jury Charge book but then the parties stipulated on the amount. It turns out my argument was wrong because the Texas Constitution contains two provisions which guarantee the right to trial by jury (at least in district courts).Taylor v. Taylor, 63 S.W.3d 93, 99 (Tex. App. - Waco 2001, no pet.) provides this explanation: Article I, section 15 is a part of our Bill of Rights. See TEX. CONST. art. I, § 15. It provides in pertinent part: The right of trial by jury shall remain inviolate. The Legislature shall pass such laws as may be needed to regulate the same, and to maintain its purity and efficiency. TEX. CONST. art. I, § 15. Article I, section 15 guarantees the right of trial by jury for those ... Read More >
Important New Case on Waste in Divorce Cases is a Game Changer
A recent decision from the First Court of Appeals out of Judge Hellums' court (won by Michael Childs) provides a new twist to claims of waste or constructive fraud. In Puntarelli v. Peterson, No. 01-11-01120-CV (Tex. App. - Houston [1st Dist.] Feb. 14, 2013), the wife asked the age old question "where did all of the money he earned go?" The wife was awarded a $196,000 judgment for wasting community funds because the husband could not account for how he spent his significant income during the five years this informal marriage/divorce case was pending. The important message from this case that should prompt almost all non-monied spouses to allege constructive fraud is this - the wife did not have to prove any specific improper transfers of community funds. The wife merely had to show that the husband's expenses were much less than his income and then the burden shifted to the husband to show where the money went. Proving how one spent money years ago is often not easy, but failure to ... Read More >