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 >
A spouse is entitled to an offset against the value of a community property business for the value of separate property assets contributed to the business
Hooray for the attorney who cites a case from 1889 and wins! Perhaps we all should review Schmidt v. Huppman, 11 S.W. 175 (Tex. 1889), which held “Where it satisfactorily appears, as in this case, that one spouse brought into the partnership separate funds invested in a particular business, which business was carried on and the profits arising therefrom used in creating and building up the community estate, and the separate funds are employed in the same business at the dissolution of the partnership, upon settlement with the community estate we think the spouse furnishing such separate funds is entitled to reimbursement therefore.” At the trial of this divorce, 123 years after the Schmidt v. Huppman case was decided, the husband proved that his sole proprietor law firm on the date of marriage had $383,233.35 in accounts receivable, $175,391.70 in unbilled time for work in progress, $5,000 in furniture and fixtures, $22,003.74 in accounts payable and $95,307.40 in accrued payroll. ... Read More >
A party can do his own tracing of separate property!
This case stands for the proposition that a party (in this case, the husband) can do his own tracing of financial accounts to prove how much is separate property. In this case, the husband was an attorney and a CPA. There was no objection to his qualifications made to the trial court. The court of appeals reviewed some very complex financial account tracing and approved what the husband calculated. It certainly seems logical that if we allow a party to testify about the value of his house without being a real estate appraiser, that we should allow a party to testify about tracing as long as the methodology is explained and is proper. Richard v. Towery, 1st Court of Appeals, 01-11-00132-CV, April 18, 2013. Another case decided this month by the San Antonio Court of Appeals is another example of a party tracing (or trying to trace) his own separate property. Unfortunately, this is also a great example of how not to trace and what evidence is insufficient to prove separate ... Read More >
How NOT to show failure to supplement when trying to strike evidence not supplemented 30 days before trial
The wife’s objection to financial documents which she said had not been produced at least 30 days before trial was properly overruled by the trial court because the wife did not show to the trial court that: (1) her discovery request specifically asked for the document, and (2) the objection to the wife’s production request made by the husband was not ruled on by the trial court. Also, the husband’s attorney said that his response stated the documents were available at his office for inspection and the wife’s attorney never came to look at them. The wife would have had to prove that the documents were not really made available for inspection. Part of the moral to this story is that discovery requests and responses are not filed with the clerk, so a party who objects to evidence that was not disclosed in discovery must get the discovery request and response into the record, either as an exhibit in court or at least as an attachment to a motion to compel. This case also says that if ... Read More >
Error to disqualify an attorney because he is a witness unless he is the only witness to specific events, i.e. – necessary to establish an essential fact.
Here, in this divorce action in Fort Bend County, the wife’s lawyer took her to a bank to open an account and oddly took photographs to document the event, the attorney hired the wife to work in her office in spite of pleading the wife was unable to work, and the attorney helped the wife “financially or otherwise” with her psychological treatment. The court of appeals noted,” The hearing record reflects that there is no evidence that relator’s attorney is the only person in possession of facts regarding these allegations. Thus it was not shown the testimony of relator’s attorney is necessary to establish an essential fact.” The court of appeals also concluded there was “no evidence that actual prejudice would result if the attorney does testify as a fact witness.” Mandamus granted. In re Stone, 14th Court of Appeals, 14-13-00311-CV, 4/19/2013. ... Read More >
Texas Supreme Court Clarifies Rule That Allows a Property Owner to Testify About the Value of His or Her Property
by Greg Enos It has long been the rule in Texas that the owner of a property can testify as to the property’s value even if the homeowner cannot qualify as an expert witness. Mata v. Mata, 710 S.W.2d 745, 758 (Tex. App.— Corpus Christi 1986, no writ). The Texas Supreme Court in December 2012 limited that rule and held that the property owner must explain the basis for his or her opinion as to value. Natural Gas Pipeline Co. of America v. Justiss, __ S.W.3d __ (Tex.12/14/2012 - 10-0451), was a nuisance suit for damages, not a divorce. However, the rule articulated by the Texas Supreme Court should apply in divorce cases when a spouse testifies what the family house or a car or a business or the personal property is worth. In such a situation, the spouse must also explain what that opinion is based on. The Supreme Court stated: Because property owner testimony is the functional equivalent of expert testimony, it must be judged by the same standards. Thus, as with expert ... Read More >
The Cost of Sale Is Usually Not Deducted From the Value of a House in a Texas Divorce
A divorce court in Texas should usually not reduce the value of a house because of closing costs and realtor fees because that approach is not consistent with the definition of “fair market value,” and because such closing costs are too speculative. There is no definitive Texas case law on point, but the majority of other states have held that closing costs should not be considered in the value of a house unless a sale is actually imminent or planned. Two older Texas cases could be interpreted to approve of reducing the value of a house in a divorce by the cost of sale. In Pelzig v. Berkebile, 931 S.W.2d 398, 403 (Tex. App. - Corpus Christi 1996, no writ), the court of appeals said,“The judge’s finding of a $99,000 value after deducting ten percent closing costs was within the range of values suggested by the evidence.” In Cole v. Cole, 880 S.W.2d 477, 484 (Tex. App. - Fort Worth 1994, no writ), it is not clear at all what method the trial court used in finding the house had a ... Read More >
Forget the notary – Unsworn Declarations are Legal in Texas!
It is no longer necessary for affidavits, sworn inventories and attorney's verifications to be sworn to before a Notary Public. The following statute was effective on September 1, 2011: Texas Civil Practices and Remedies Code. Sec. 132.001. UNSWORN DECLARATION. (a) Except as provided by Subsection (b), an unsworn declaration may be used in lieu of a written sworn declaration, verification, certification, oath, or affidavit required by statute or required by a rule, order, or requirement adopted as provided by law. (b) This section does not apply to an oath of office or an oath required to be taken before a specified official other than a notary public. (c) An unsworn declaration made under this section must be: (1) in writing; and (2) subscribed by the person making the declaration as true under penalty of perjury. (d) Except as provided by Subsection (e), an unsworn declaration made under this section must include a jurat in substantially the following ... Read More >
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