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 >
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 >
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 >
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 >
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 >
It is error for a court to issue a wage withholding order for contractual alimony unless the parties agreed to wage withholding per Tex. Fam. Code Sec. 8.101(b)(1).
Sec. 8.101(b)(2) that allows wage withholding “if the alimony payments are not timely made under the terms of the contract” does not mean what it seems to clearly say, in part because the Texas Constitution only allows wage withholding for child support and court ordered spousal maintenance, not agreed contractual alimony. Note: Sec. 8.101(a-1) has been added by the last legislature effective 9/1/2013 that specifically allows wage withholding for contractual alimony. This decision might mean that new law is unconstitutional. Pappolla v. Simovich, No. 14-12-00418-CV (Tex. App. - Houston [14th Dist.] 5/21/2013). ... Read More >
Mystery payment to husband from his business can be considered an asset in calculating community property division.
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 >
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 >
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