At some point, we all handle cases where the opposing party is incarcerated and pro se. The recent case of Camp v. Camp, No. 07-11-00282-CV (Tex. App. - Amarillo 8/3/2012, no. pet.)(mem. op.) summarizes the law on when the inmate is entitled to be present at trial. The Texas Supreme Court in the case of In re Z.L.T., 124 S.W.3d 163, 165-6 (Tex. 2003) also noted the factors courts should consider in making arrangements for the inmate to be brought to court or to participate in some alternate fashion (by telephone, deposition or even affidavit): Following the Seventh Circuit's decision in Stone v. Morris, 546 F.2d 730, 735-36 (1976), Texas courts of appeals have recognized a variety of factors that trial courts should consider when deciding whether to grant an inmate's request for a bench warrant. These factors include the cost and inconvenience of transporting the prisoner to the courtroom; the security risk the prisoner presents to the court and public; whether the prisoner's ... Read More >
File For a Mandamus If a Judge Refuses to Sign an Order Or Set a Hearing
The Houston First Court of Appeals granted a writ of mandamus against a trial judge who refused to set a civil case for trial in case of In re Harrell, No. 01-11-00760-CV (Tex. App. - Houston [1st Dist.] 1/26/2013) (mem. op.)(orig. proc.). The Court of Appeals stated: A court of appeals may not prescribe the manner in which a trial court exercises its discretion, but it may, by mandamus, require a trial court to exercise its discretion in some manner. A trial court may not arbitrarily halt proceedings in a pending case, and mandamus will lie to compel a trial court to entertain and rule on motions pending before it. A trial court is required to consider and rule upon a motion within a reasonable time. If a motion is properly filed and pending before a trial court, the act of considering and ruling upon that motion is ministerial, and mandamus may issue to compel the trial court to act. (citations omitted). ... Read More >
A Quote to Give a Judge Who Feels Resolving a Case Quickly Is More Important Than a Fair Trial
The Supreme Court of Texas has stated: Although a goal of our system is to resolve lawsuits with "great expedition and dispatch and at the least expense," the supreme objective of the courts is "to obtain a just, fair, equitable and impartial adjudication of the rights of litigants under established principles of substantive law." This means that "convenience and economy must yield to a paramount concern for a fair and impartial trial." And basic to the right to a fair trial--indeed, basic to the very essence of the adversarial process--is that each party have the opportunity to adequately and vigorously present any material claims and defenses. Southwestern Refining Co., Inc. v. Bernal, 22 S.W.3d 425, 437 (Tex.2000)(citations omitted). ... Read More >
Student Loans Incurred Before Marriage Are Separate Debt
A trial court cannot order one spouse to pay the student loans of the other spouse which were incurred before the marriage. The Houston First Court of Appeals has ruled: The obligation to pay the loans arose before marriage and should be treated as Sophia's separate debt-separate debt that could not be assigned to the non-incurring spouse. Accordingly, we conclude the trial court erred in assigning Sophia's premarital student loan debt to Albert because that student loan debt constituted Sophia's separate debt. Love v. Love, 217 S.W.3d 33, 35 (Tex. App. - Houston [1st Dist.] 2006, no pet.). ... Read More >
Gifts to Family Members Are Not Always Constructive Fraud or Waste
Marshall v. Marshall, 735 S.W.2d 587 (Tex. App. - Dallas 1987, writ ref'd n.r.e.), involved a two and a half year marriage and a husband who, during the marriage, earned $542,315.72 and gave $63,375.58 (11.7%) to his daughter and grandson. The trial court's ruling that these gifts were not constructive fraud and was upheld by the court of appeals, which said: The courts consider three primary factors in determining whether the wife's claim of constructive fraud exists: the size of the gift in relation to the total size of the community estate, the adequacy of the estate remaining to support the wife in spite of the gift, and the relationship of the donor to the donee. We conclude that the evidence supports the trial court's finding of no constructive fraud. The community received $542,315.72 during the marriage as Woody's special community property. The contested gifts of $63,375.58 are only 11.7 percent of this amount. The remaining $478,940.14 in community funds from the ... Read More >
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 >
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 >
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 >
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 >
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 >