Dallas Divorce Lawyer Blog

Enforcement and Attorney's Fees: When Parties Get the Short End of the Stick

Thu, 14 Feb 2013 12:13:27 -0600

Many clients ask if we can sue for attorney's fees as part of their family law case. This is understandable--lawsuits can be very expensive and often times our clients have to hire a lawyer only because the other party violated a court order. This is understandably frustrating to our client. Therefore, most of our clients reason that if they win their lawsuit, and it's the other party's fault they had to pay for a lawyer in the first place, they should get the losing party to pay their attorney's fees. The "loser pays" idea sounds like something that should exist, but it's not the law in Texas. Winning a lawsuit that is the fault of the other party does not mean you can automatically get an award of attorney's fees. I tell clients to focus on if the law allows for, and if the judge will grant attorney's fees.

This was the question posed to the Dallas Court of Appeals in Shilling v. Gough, an enforcement action for a violation of an injunction that was originally ordered in the final decree of divorce. There, the husband argued that the wife had violated an injunction in the divorce decree that prevented her from disclosing certain information regarding the husband's medical history. The trial court reviewed the injunction and a trial was held in which the court ruled against the Appellant (husband) and awarded attorney's fees to the Appellee (wife). The husband was unhappy about the attorney's fees award (not only was it wrong, it was a whopping $96,001.65) and so he appealed. The Dallas Court of Appeals held that the award of attorney's fees was an abuse of discretion and reversed the trial court's award.

The reality is it is not sufficient to make a basic argument of "they do not have a basis for this and so therefore I should get attorney's fees if I win". In fact, the Dallas Court of Appeals, looking to guidance from the Texas Supreme Court in Tony Gullo Motors 1, L.P. v. Chapa, held that the award of attorney's fees is not an inherent authority that a trial court possesses. Meaning, the judge cannot do it just because they think it sounds right or if they feel like it. This is because the Texas Supreme Court also held in Travelers Indem. Co. of Conn. v. Mayfield that the authority of a trial court to award attorney's fees must come from a specific statute. Thus, if a trial court is going to award attorney's fees, it must have statutory authority to do so.

Another key point is that this was an enforcement of a final decree of divorce. So, one would argue that you just look to Chapter 9 of the Texas Family Code for the enforcement of a final decree and derive the authority from that statue to award attorney's fees. However, as the Dallas Court of Appeals adjudicated here, that is not the case. In fact, the trial court tried to say that it awarded attorney's fees to the wife based upon Texas Family Code Section 9.014 because it authorizes courts to award attorney's fees in a suit to enforce a decree. However, The Dallas Court of Appeals held that specifically, this statute deals with enforcement of the final decree with respect to the property division. This case involved an injunction. Therefore, the trial court could not use this section for authority on the attorney's fees award.

The other basis the trial court claimed was that it awarded attorney's fees as a sanction on the husband for filing the suit. The Dallas Court of Appeals struck down this argument in examining Chapter 10 of the Texas Civil Practice & Remedies Code and Rule 13 of Texas Rules of Civil Procedure. There are certain statutory prerequisites that the court and the pleading party must meet before the court can sanction the other party. Here, none of the prerequisites were met. Therefore, an award of attorney's fees based upon the sanction argument, at the Dallas Court of Appeals put it, "can have a significant chilling effect on the litigation process."

The moral of the story is if you want to fight for attorney's fees, you better have a statutory basis for your argument and spell it out for the court. Otherwise, if the other side knows about this Dallas Court of Appeals opinion, you will probably lose.

Informal Settlement Agreements in Divorce

Wed, 13 Feb 2013 15:49:49 -0600

If you are involved in a divorce case and you no longer want to fight on the issues, you and your spouse can enter into an agreement. The question is on whether you take the mediation or informal route. Thus, you contact your attorney at Guest & Gray, P.C. in Forney, Texas to discuss your options in more detail.

Mediation can be more expensive. This is because mediation consists of you, the other party and your attorneys and a mediator that both parties must pay their fee. The fees range depending upon what mediator you choose or that is ordered by the court. With mediation, you and your attorney sit in one room and the other party and their attorney sit in another room and the mediator goes back and forth as a neutral problem solver and takes offers back and forth trying to promote a settlement. If it is a contested case and the parties cannot informally settle the case, most courts require mediation before a final hearing can be held.

However, if you and the other party and your attorneys feel that you can settle this matter absent the necessity of having a neutral third party present to relay offers and keep the peace then informal settlement may be the best option for you. This can take several forms such as the attorneys relaying offers back and forth without anyone getting together or the attorneys can arrange where the parties and attorneys meet to discuss the matter and finalize.

If an informal settlement is successful, it must be in writing. This can either be in the form of a Rule 11 Agreement or it can be in the form of an Agreement Incident to Divorce as outlined in Texas Family Code Section 7.006. Much like a Rule 11 Agreement, until an order or judgment is rendered that encompasses the Agreement Incident to Divorce, subsection (a) states that the Agreement Incident to Divorce "can be revised or repudiated before the divorce is rendered unless the agreement is binding under another rule of law." Thus, this also suggests like a Rule 11 Agreement, an Agreement Incident to Divorce can be enforceable as a contract. Should the other party back out, to enforce the Agreement Incident to Divorce or informal settlement agreement your attorney must file a motion to enforce and sue the other party for breach of contract.

Enforcing a Rule 11 Agreement

Wed, 13 Feb 2013 15:48:04 -0600

In some cases, parties enter into an agreement rather than fight over the issues and it is often reflected in a Rule 11 Agreement. In order to be enforceable, the Rule 11 Agreement must either be (1) in writing, signed by all parties and their attorneys, and filed with the Court, OR (2) the agreement must be entered into the open record of the court.

Many parties and their attorneys think that as long as this happens, then the other side cannot back out of the agreement. However, this is an unfortunate misconception. If a judgment has not been entered reflecting the agreement and it has not been made an order of the Court, then the other party can try and back out of the agreement. Thus, you are concerned because you want to keep the agreement that you entered into. How do you do this? Contact your attorney at Guest and Gray, P.C. in Forney, Texas and they can walk you through the steps to enforce your Rule 11 Agreement.

Your attorney will tell you that you must file a motion to enforce and sue the other party for breach of contract. The key to remember is that a judgment cannot be entered reflecting the settlement agreement once the other party has repudiated. That is, in Stein v. Stein the 1st District Houston Court of Appeals held that if a party backs out of the agreement before a judgment is entered, then any judgment rendered after that would be void and invalid. Thus, when you seek a motion for enforcement and you are seeking to enforce the agreement as a contract, you are asking the court to enforce the actual agreement and not enter a judgment reflecting it. Once the court upholds the agreement and enforces it, then you can seek to get the court to sign orders reflecting that agreement. This is also supported by the opinion of the Fort Worth Court of Appeals in CherCo Prop., Inc. v. Law, Snakard & Gambill, P.C. There, the Court held that even though the Plaintiffs had withdrawn their consent to the agreement and this did render any agreed judgment in the future void, it had no effect on the Defendant's motion to enforce the agreement as a contract.

One important distinction is if your agreement is a Rule 11 Agreement under Texas Family Code Section 153.007 (dealing with child conservatorship and possession), it is not enforceable as a contract. Also, unlike other Rule 11 Agreements where courts cannot alter, modify or add to, if a court feels as though an agreement regarding child conservatorship and possession is not in the best interest of the child, the court can advise the parties to submit a revised agreement or render different orders from the agreement.

As you can see, enforcing a Rule 11 Agreement can be a difficult undertaking. Therefore, it is much easier to have the court render a judgment approving the Rule 11 Agreement and its terms as the orders rather than leave it to question at a later date.

Rule 11 Agreements: The Nitty Gritty Details

Wed, 13 Feb 2013 15:45:16 -0600

You are at a hearing of your family law case (whether it be a divorce or custody case). This could be a temporary orders hearing (setting the status quo of the case) or another interim hearing or maybe it is the final hearing. Despite what stage of the case you might be in, most judges encourage the parties and their attorneys to speak before an actual hearing is held. This is because most judges encourage settlement and rightfully so for many reasons.

Only you and the other party know your case the best and this is because it is your life. Thus, if anyone should decide what should happen in the case, it should be the parties. Also, agreements are also in the interest of judicial economy. Meaning, the court's docket is freed up for those cases that are truly contentious and for those issues that cannot be settled without the guidance of a judge. As well, the parties save money with agreements rather than having knockdown, drag out hearings. Unfortunately, given all of the positive factors some parties are not able to reach agreements.

However, you are among the few and you are able to reach an agreement. On that day, you do not have any specific orders for the judge to sign. Rather, what typically happens is that you and the other party enter into a Rule 11 Agreement. This happens one of two ways--either your attorney or their attorney writes the agreement in full down on a piece of notebook paper and the parties and their attorneys sign. Or, the agreement is written down and both parties testify and the agreement is entered into the open record of the court with the court reporter transcribing. Many people think that the notebook paper or oral recitation of agreement is not very reassuring because it is not in a fancy, typed-up order with legal jargon. However, what most people do not understand is that you must do one or the other in order for the Rule 11 to be enforceable. That is, if you merely had an oral agreement and everyone left the courthouse, if at a later date the other side claims that they did not agree to what you are now claiming the agreement was on the court date, there is nothing you or your attorney can do about it.

In fact, Rule 11 of the Texas Rules of Civil Procedure states that "no agreement between attorneys or parties touching any suit is enforceable unless it is in writing, signed, and filed with the papers as part of the record, or is made in open court and entered of record." Thus, you must either file the signed notebook paper encompassing all of the terms of your agreement or have your attorney read it into the record and commit both parties that this is in fact your agreement.

With respect to the terms of the agreement, you must include all material terms and the agreement must be clear and unambiguous. If you cannot agree upon certain terms or if any terms are left out, they are considered to still be contentious and will not be included by default. Thus, be sure that you and your attorney go over all of your goals beforehand on what you want to accomplish at the hearing and be sure that any document you sign or any agreement that you testify is in fact your agreement contains all of the terms that you want to cover. If all of the terms of the agreement are not contained in the agreement, then the Texarkana Court of Appeals in In Re Hallman held that the trial court has a duty to resolve those remaining issues.

If at any time you feel that you are no longer satisfied with the Rule 11 Agreement and its terms, you must notify your attorney and revoke your agreement before a judgment reflecting the Rule 11 is entered. That is, if your agreement is entered on the record and the Court approves the agreement and renders that the orders in the case (and enters a judgment reflecting that), then you will no longer be able to contest the agreement. In fact, the Fort Worth Court of Appeals in Clanin v. Clanin held that if a party is attempting to repudiate only after a judgment had been rendered, the agreement will be upheld and the party will not be permitted to contest it.

Contact your attorney at Guest & Gray, P.C. in Forney for further information on Rule 11 Agreements.

Mediated Settlement Agreements: Enforceable, Notwithstanding Another Rule of Law?

Tue, 29 Jan 2013 13:41:16 -0600

You are in the middle of a divorce or custody case and you attended mediation with the other party in which you successfully settled the issues. Upon doing so, you signed a mediated settlement agreement. You think that the case is over and you leave feeling somewhat relieved not having to fight anymore. However, issues could still arise. The question is whether those issues or arguments will be successful. Needless to say, you will need to fight them to ensure that the MSA, your agreement that you worked so hard for, will remain in effect and be enforced by the court.

Mediated Settlement Agreements (MSAs) are classified as binding contracts between the parties as long as it satisfies certain requirements. In fact, Texas Family Code Section 153.0071(d) states that "a mediated settlement agreement is binding on the parties if the agreement" provides in large, bold, underlined lettering that the agreement cannot be revoked; is signed by all parties to agreement; and is signed by all party's attorneys. You may think that if you have all of this met that you would not have to deal with any further issues. Unfortunately, this is a misunderstanding. If the other party is not happy with the MSA and the trial court's enforcement of it, then they can appeal that decision. This is when you must look further into the statute, and it seems as though you are still protected. That is, Section153.0071 (e) states that "If the mediated settlement agreement meets the requirements in (d), then a party is entitled to a judgment notwithstanding another rule of law." Thus, this means that if you satisfy the previous mentioned requirements, then this agreement is enforceable despite another rule of law such as contract law.

An example of where an MSA can be attacked is in a recent opinion from the Dallas 5th District Court of Appeals in In the Interest of C.H.C. and S.M.C., Children where a wife and husband entered into a MSA for the modification suit. However, after the trial court enforced the MSA and ruled on the remaining issues (which can be done according to case law and this Court), the wife was not happy. Thus, she appealed and argued on several issues that the MSA was not enforceable under contract law. In fact, she asserted such contractual defenses as absence of consideration, failure of consideration, mutual mistake, no meeting of the minds, missing terms, and ambiguity. The Court held that it will not make a decision on whether any of these defenses apply to an agreement under 153.0071. Rather, the Court addressed each defense and found the arguments to be wanting and wrong.

You can never ensure that the other party will not continue to fight you on the case (if they have the money, they most likely will if they are not happy with the outcome). However, mediations are still very helpful and this case reinforces that--if you have an MSA that meets all of the requirements and is enforceable, then a court is going to uphold it. This is why so many courts still encourage mediations as they do resolve so many cases. And even if the other party is not happy with the resolution in the MSA, this Court makes it clear that it will be incredibly difficult to change or avoid the MSA.

Disproportionate Share of Community Estate: It's My Spouse's Fault We Are In This Mess

Thu, 27 Dec 2012 09:46:49 -0600

When parties divorce the Court, according to Texas Family Code Section 7.001, makes a "just and right division" of the community estate. For most parties, this typically means an equal split of the community estate as to the assets and debts. However, there are some instances in which the Court could award a disproportionate share of the community estate and the statute allows for such as it does not mandate an equal division. In fact, the trial court has a lot of discretion in dividing the community estate.

For a disproportionate share of the community estate, the controlling opinion was issued in 1981 by the Texas Supreme Court in Murff v. Murff. There, the Court set out several factors for the courts to consider when they are making a just and right division of community property and debts. The factors are: the disparity of incomes or earning capacities of the spouses; the spouses' capacities and abilities; benefits which the party not at fault would have derived from a continuation of the marriage; business opportunities of the spouses; spouses' educations; spouses' relative physical and financial conditions; spouses' separate estates (if any); nature of property to be divided; fault in the breakup of the marriage (adultery, cruel treatment, other spouse is convicted of felony and imprisoned for at least one year, abandonment for a year or more, living apart for at least three years, other spouse is confined to a mental hospital for at least one year); or parties' attorneys fees.

In addition to these factors, there are also additional causes of action in divorces which would allow or create argument for a disproportionate share of the community estate.

As discussed, a spouse's "fault" in the breakup of the marriage can be considered by the trial courts when it is dividing the community estate between the parties. The key word here is "may" consider as the Texas Supreme Court and many appellate courts after it have adjudicated that the trial courts in Texas are not necessarily required to consider the other party's fault. In fact, seemingly, trial courts have a wide discretion when it comes to fault grounds and division of the community estate. That is, in addition the above referenced wide latitude, if a party pleads for a fault divorce, the Court can hear evidence of fault, enter a divorce on no-fault grounds (that is a divorce would be granted based upon insupportability--as defined in Texas Family Code Section 6.001), and still award a disproportionate share of the community estate. In fact, the Beaumont Court of Appeals in Phillips v. Phillips held that in addition to or even excluding fault, there is a nonexclusive list of factors that a court can consider in determining whether or not to award a disproportionate share of the community estate.

The fault grounds are listed above and the most common used is adultery. In Abernathy v. Fehlis, the Austin Court of Appeals held that the husband's adultery caused the breakup in the marriage and thus justified a disproportionate share of the community estate. Interestingly, the Houston 1st District Court of Appeals in Bell v. Bell held that the adultery does not end at separation and includes any adultery committed after separation.

The Texas Supreme Court in Young v. Young held that in addition to considering fault of one spouse, if argued concurrently, the trial court can also consider benefits the innocent spouse would have received if the marriage continued. For example, in Hopkins v. Hopkins, the Corpus Christi Court of Appeals the medical benefits a wife would have been entitled to had she been or continued to be a wife of a retired Air Force officer. Therefore, in pleading fault, also consider any benefits that you currently receive or would receive if the marriage continued.

The Eastland 11th Court of Appeals in Duncan v. Duncan said it best--"the circumstances of each marriage dictate what factors should be considered in the properly division upon divorce."

Disparity of Earning Power and Disproportionate Shares of Community Estate

Thu, 27 Dec 2012 09:44:28 -0600

In particular, disparity of earning power has become a major factor in divorces especially those in which one spouse has been the breadwinner of the family. For instance, the Houston 1st District Court of Appeals held in Robbins v. Robbins that the trial court was correct in its decision to award the wife 58% of the community estate and the husband 42% of the community estate. The Court concluded this was because the wife had been out of the working community for quite some time and the husband had a much greater earning capacity than the wife.

Therefore, it is not always as we say "50/50" in a divorce. There are some instances, such as earning power, capacities or abilities that necessitate an unequal division of the community estate. At the same time, there are also instances in which despite the disparity in earning power, an equal division of the community estate is justified. In fact, the Houston 14th District Court of Appeals held in Hanson v. Hanson that while it could award a spouse with less education and earning power a disproportionate share, it does not necessarily have to if the community estate is large enough that an equal division would satisfy the requesting spouse's financial needs. Thus, as with all divorces, no case is the same and it will truly depend on the circumstances in front of the court on that particular day.

Disproportionate Shares of Community Estate: Fraud

Thu, 27 Dec 2012 09:40:56 -0600

For a disproportionate share of the community estate, the controlling opinion was issued in 1981 by the Texas Supreme Court in Murff v. Murff. There, the Court set out several factors for the courts to consider when they are making a just and right division of community property and debts. The factors are: the disparity of incomes or earning capacities of the spouses; the spouses' capacities and abilities; benefits which the party at fault would have derived from a continuation of the marriage; business opportunities of the spouses; spouses' educations; spouses' relative physical and financial conditions; spouses' separate estates (if any); nature of property to be divided; fault in the breakup of the marriage (adultery, cruel treatment, other spouse is convicted of felony and imprisoned for at least one year, abandonment for a year or more, living apart for at least three years, other spouse is confined to a mental hospital for at least one year); or parties' attorneys fees.

In addition to these factors, there are also additional causes of action in divorces which would allow or create argument for a disproportionate share of the community estate.

Fraud is a separate economic tort in a divorce action and is either actual or constructive and is also known as fraud on the community. Actual fraud is defined in Stone v. Lawyers Title Insurance Company by the Texas Supreme Court as (1) a material representation was made; (2) it was false; (3) the speaker knew it was false or was reckless in making it without knowledge of its truth; (4) the speaker made the false material representation with the intent that the other party act on it; (5) the party did act on it in reliance of that representation; and (6) the party therefore suffered. Constructive fraud on the other hand is a breach of a legal or equitable duty. For instance, husbands and wives have fiduciary duties to one another and when that is breached, it is constructive fraud or a fraud on the community. An example would be if your husband just gave away property or charged a large sum of money on the credit card without your knowledge.

The Texas Supreme Court more recently defined fraud on the community in Schlueter v. Schlueter "as a wrong committed by one spouse which may be considered by the trial court in its division of the community estate and which may justify a disproportionate division." Therefore, a trial court can award the requesting spouse a disproportionate share of the community estate to make up for the wrong of the other spouse. But, if it is so bad that there is not enough community estate to compensate the requesting spouse, then the trial court can choose to award a money judgment in the requesting spouse's favor to make up for the loss. In the above referenced Murff case, the Court awarded a money judgment to the wife against the husband because he had a substantial amount in savings before the parties separated and those savings disappeared by the time the final trial rolled around.

Considering this, Schlueter removes the ability of the requesting spouse to have a separate cause of action for damages because the statutory remedy for the tort is already in place (fraud on the community). However, the requesting spouse can still sue the other spouse independent to the divorce action for actual fraud if the fraud was committed on the requesting spouse's separate estate (property acquired before marriage or that which was acquired during the marriage by gift, devise or descent) and if proven, the requesting spouse can receive punitive damages.

Therefore, if you feel as though your spouse has committed fraud on the community estate, you must discuss this at the outset with your attorney so that they can properly plead for such cause of action with the divorce. You do not have two bites at the apple so make sure you plead for it when you have the chance because you cannot, as adjudicated in Schlueter, seek an additional cause of action beyond the divorce action.

How To Convert Separate Property Into Community Property--Follow the Statute

Thu, 27 Dec 2012 09:38:05 -0600

Community property is defined as anything acquired during the marriage. Separate property, however, is anything acquired before marriage and anything acquired during the marriage by gift, devise, or descent. Your separate property is just that--yours. If you are married and you divorce your spouse, your separate property remains yours. In fact, Texas courts are prevented from dividing separate property between spouses.

If you are married with separate property and you love and trust your spouse to the point that you would like for them to also share in the interest of your separate property, to ensure that this is a legal interest, you must convert the separate property into community property. If you fail to do so, then the spouse you love and trust is out of luck when it comes to the separate property that has not been properly converted. This is demonstrated by the Dallas 5th District Court of Appeals in In Re the Estate of Olen F. Cunningham, Deceased. There, the husband had entered into an "Agreement to Establish Right of Survivorship in Community Property" with his wife. The problem was, as the Court held, the agreement did not meet the requirements of Texas Family Code Sections 4.203 and 4.205.

Per Texas Family Code Section 4.203, if you want to convert your separate property into community property, the agreement must "be in writing and be signed by the spouses; identify the property being converted; and specify that the property is being converted to the spouse's community property; AND it is enforceable without consideration." You may think (as well as several other unknowing persons) "I have put the home that I brought into the marriage in both of our names so surely that means it is our community property." However, according to the statute and only caselaw on the subject, you are wrong. That is, the statute goes on further in subsection (b) and states "the mere transfer of a spouse's separate property to the name of the other spouse or to the name of both spouses is not sufficient to convert the property to community property under this subchapter."

Furthermore, even with this agreement, a court must then determine if it is enforceable. The enforceability of such agreements is determined in Texas Family Code Section 4.205. In particular, the statute states that the agreement is not enforceable if the converting spouse "did not execute the agreement voluntarily; or did not receive a fair and reasonable disclosure of the legal effect of converting the property to community property." In subsection (b) the legislature sets out a verbatim disclosure that can be included in agreements that would satisfy the issue of fair and reasonable disclosure of the legal effects of the conversion.

Therefore, if you want to voluntarily and legally make "what is mine is ours", then you must follow the statute. Otherwise, for now according to the Dallas 5th District Court of Appeals, your agreement will be just a piece of paper without any legal effect.

I Have Been Served, Certainly I Can Handle this Alone...

Thu, 06 Sep 2012 15:38:46 -0600

As part of the procedural requirements to get a lawsuit going, you must either be the server or the servee. In family law cases, sometimes you are served with more than one document at a time. For instance, you could be served not only with the petition, but also with a notice of hearing. The key is what do you once you are served. If anything, never just sweep it under the rug. While it is something that you do not want to be troubled with, unfortunately, the process has begun and now you are forced to deal with it. If you do not take some form of action, a default judgment will be obtained against you. In divorce and child custody cases, this is especially problematic. It is either your property, debts, and or child on the line. You do not want to miss your opportunity to fight.

Also, many people operate under the misconception that you can do this alone. The Texas Family Code is very complex. Not only that, there are procedural issues to consider in the Texas Rules of Civil Procedure. There might even be some criminal issues mixed in which would be covered, in part, by the Texas Penal Code. Given that, the very task of filing an answer to the petition can be daunting and intimidating. Where do you get the document? What is an answer? How do I file an answer? These are just a few of the introductory questions.

The key is to never do this alone, or what is called pro se. An example of how this could go south quickly is in a recent appellate decision rendered by the Dallas Fifth District Court of Appeals in Friedman v. Friedman. In this case, the woman filed a petition for divorce and had her husband served. He did not do anything, and the woman obtained a default judgment and the judge signed a final decree of divorce. The husband did not file an answer and he had been properly served, thus the judge could do this. The final decree of divorce dispensed with the marital property and debts. This was not enough for Mr. Friedman to learn his lesson, because he then filed his own appeal in the form of a motion for new trial and drafts the document himself.

Within his motion for new trial, Mr. Friedman stated that he did not answer the original petition because of mistake--he claimed to have been informed to not answer it. While that may be true, he is still trying to argue an appeal on his own. The problem with this, as you can imagine at this point, is that the motion for new trial (which was a generated document he bought offline) was not filled out correctly and he did not have the proper attachments and thus, it was thrown out. This is because Craddock v. Sunshine Bus Lines, 134 Tex. 388, 133 S.W.2d 124 (1939), sets out a 3 prong test that must be met (both plead to and argued on appeal) that must be satisfied in order for a motion for new trial to be granted. You have to be very careful in formulating your arguments and making sure you do not forget anything. Unfortunately, Mr. Friedman forgot to include a few valid arguments in his motion, and therefore it was denied.

Do not let this happen to you. Contact your local attorney at Guest & Gray today so that we may help with all of your family law needs.

Post-Final Order Remedy: Enforcement of Child Support Order

Mon, 26 Mar 2012 16:34:49 -0600

You've been through a divorce or a suit affecting the parent-child relationship, and the other party was ordered to pay child support by the Court, the terms of which were all located within the Court's final orders. With all orders of child support, the orders state how much the obligor (responsible parent) is supposed to pay, how often they have to pay, and to whom they make the payment (in most if not all cases, the state disbursement unit). However, it's been several months, or even years, and the other party has failed to comply with the child support order. You need financial help in raising your child; but you've reminded the other parent time and time again about this, and they still refuse to help you. So, you contact your attorney at Guest & Gray, P.C. who informs you that there is a solution--motion for enforcement.

Within this motion for enforcement, you will plead the dates that the child support payments were due, the amount that was due, and the amount that was paid. So, for instance, if the obligor was ordered to pay $200.00 on the first day of each month, and they just didn't make a payment at all, then the amount paid would be $0.00. And, if they did make a payment of some amount, you can list that. But, the reality is that they were ordered to pay a certain amount, and that amount needed to be paid in full.

Because the obligor has failed to make their child support payments, then they are now in what is called arrearages for child support. This means that they have an outstanding balance. In pleading for an enforcement of the child support order, you will plead the total amount that the obligor is currently in arrearages. You will ask that the Court confirm this amount when you have your hearing and order that the obligor be responsible for that full amount.

Within the remedies that can be requested, the most popular is that of contempt. That is, you can request that the Court order that the obligor be confined in jail or pay a fine in addition to the remedy of paying you the child support arrearages that he/she owes. You can also request that the Court enter a money judgment against the Respondent or obligor, impose a child support lien against Respondent's property, order withholding from Respondent's paycheck, and/or award your attorney's fees. You and your attorney must be specific in the remedy that you are seeking, because unless it's requested within your motion, then a judge can't award it. So, be sure to ask for what you want.

With respect to attorney's fees, sometimes in family law cases this can be hit or miss. It is generally determined on a case-by-case basis and can also depend upon the Court that your case is in. However, the Texas Family Code carves out a special niche for enforcement of child support cases. That is, Texas Family Code Section 157.167(a) states that if you prove that the Respondent has failed to make his/her child support payments, then the Court shall order the Respondent to pay your attorney fees and any costs associated with the suit. Another caveat is that if the Court finds that the Respondent is in arrearages for $20,000.00 or more in child support, then the Court must award attorney's fees and costs unless the Court finds that Respondent is (1) involuntarily unemployed or is disabled; or (2) lacks the financial resources to pay the attorney's fees and costs.

When a Court orders a person to pay child support, it does so because not only is it required by Texas law, but also because of a moral code to ensure that the children's essential needs are met. So, if you are facing this situation, there is a remedy to make the other parent step up and comply with their obligation and with the Court orders. You just have to take the first step and bring it to the Court's attention.

Post-Divorce: Enforcement of Property Division

Mon, 26 Mar 2012 15:27:51 -0600

You are divorced and in the final decree, your ex-spouse was ordered to take care of a particular piece of property. It could be that they were ordered to take a piece of property and pay for it, pay a debt, ordered to hand over a piece of property to you upon divorce, etc. However, your ex-spouse has failed to comply with these orders and you are fed up with asking them to do so time and time again without any result. So, you contact your attorney at Guest & Gray, P.C. in Kaufman County who informs you that a motion for enforcement can be filed on your behalf. In a nutshell, and quite simply, this is asking the Court to force the other party to do what they were originally ordered to do, because they never did it.

When dealing with an enforcement issue, the primary concern would be looking at the final orders and what particular provision you are seeking to enforce. This is crucial because the order language must be specific in order to be enforceable. If not, then you (within the final orders) are given the option of requesting a clarification from the Court via a motion to clarify. Basically, you would be telling the Court, I know you ordered my ex-spouse to do something, but we are unsure as to what the specifics were in that order or what the Court had in mind with that order. This request for a clarification can be joined with your motion for enforcement.

Also, the language within the final orders is important because when preparing your motion for enforcement, you have to identify the violated provision. That is, Texas Family Code Section 157.002(a)(1) states that the motion to enforce must "identify the provision of the order allegedly violated and sought to be enforced." Therefore, a motion for enforcement serves as a tool to point out to the judge his/her orders in the final decree, the allegations that the party ordered to act has failed to do so, and then requests a remedy on your behalf due to the responsible party's failure to comply.

With respect to remedies, there are a few to choose from. You can either request that the Court order the party to deliver a piece of property to you, award real estate, or award a money judgment and attorney's fees. With respect to the last remedy, this is requested when the order can no longer be performed such as you already took care of it or the property doesn't exist anymore. You are requesting that the Court award you an amount of money for damages of either costs you incurred or the value of the property that no longer exists. Once you obtain a money judgment, you will need to enforce it against the other party.

Once a motion for enforcement is drafted, it will then be filed with the clerk's office and the Respondent (your ex-spouse) will be served with your motion and citation. This will allow them some time to answer your petition, hire an attorney, or both. At the time of filing, you can also seek to have a hearing placed on the docket which will be a hearing before the judge, not a jury trial.

Knowing your rights when the other party won't comply with what the Court orders is essential. It is frustrating to know that even when a Court orders someone to do something, they may not do it. But, it is good to know that there are remedies for noncompliance. Courts issue orders for a reason, and they expect the parties to comply with them. But, you have to take that step and bring this to the Court's attention.

Child Protective Services and Allegations of Abuse or Neglect Within Your Home: What to Expect

Mon, 26 Mar 2012 12:03:02 -0600

Imagine this scenario: you are at work or at home waiting on your child to get home from school, and someone contacts you and identifies themselves as a CPS social worker and they want to speak with you regarding your child and some recent allegations. You are confused and concerned. Unfortunately, many parents face this every day.

In fact, Child Protective Services (CPS) has two different avenues of becoming involved when there are allegations of child abuse (typically classified as sexual, emotional, or physical), neglect (defined as lack of supervision, lack of medical or emotional care, etc), or if CPS suspects that there is alcohol or drug abuse occurring within your home. The two different avenues of involvement are as follows:

EITHER:

(1) You receive notice from CPS that there is an allegation of child abuse within your home. The CPS worker who has been assigned to your case will contact you and will begin the investigation. The CPS worker can even go around you and first visit your children at school or daycare and can discuss the allegations with them and determine if there are any real and apparent issues that are consistent with the initial report. Then, the CPS worker can choose to come to your home and interview you there. The CPS investigator is looking for evidence of abuse or neglect or for evidence that abuse or neglect may occur within the foreseeable future. More specifically, the caseworker is looking for an immediate risk of serious harm.

At the close of its initial investigation, which must be conducted within 30 days of the report, a conclusion will be made by the CPS worker whether the allegations are true. If at the conclusion of the initial investigation the allegations are deemed as being true, then CPS can seek to remove your child or they can seek to make further plans for your family to ensure that the children are protected. This might entail what CPS terms as the Safety & Evaluation Plan and can include such recommendations like parents will attend counseling, the CPS worker will make random home visits, the children are not to be around a certain person, etc. This may not result in a court case at all.

Also, it's important to note that you may become involved in a custody dispute after the CPS investigation is initiated. Maybe the other parent is seeking to modify the custody orders that were initially rendered by the Court, and CPS' involvement now plays a huge role. Your attorney at Guest & Gray, P.C. will be able to discuss this with you and let you know what to expect.

OR:

(2) CPS decides to take administrative action when it receives a report of alleged child abuse or neglect and removes the child from the home or places limitations on your visitation during the pendency of the investigation.

At this point, you have a very short time frame between having your child or children removed from your home and from when you will be in front of the judge. Once your child is removed, you will receive a written report and petition from CPS. The petition will name CPS as the petitioner and you as the respondent and will list out the allegations of why you shouldn't have custody of your child. You will need to be sure of when your court date is, because as mentioned, it will come up quickly.

Potentially, there are 8 hearings that are involved in these cases which are: emergency hearing, adversarial hearing, initial permanency planning team meeting, status hearing, initial permanency hearing, additional permanency planning team meetings, permanency hearing, and final hearing.

First, the emergency hearing is held within 1 business day of CPS' filing of its petition and it can be ex parte, which means that the Court can hold this hearing without you. At this hearing, CPS' attorney has the opportunity to present the allegations and issues to the judge and the judge will determine whether or not to keep the children in CPS' care until the adversarial hearing.

Second, the adversarial hearing is held no later than the 14th day after the child or children are removed from your home. At this hearing, the Court will determine whether the removal of your child was proper. If the Court concludes that the removal was proper, the Court will also put temporary orders into place while the case is pending to ensure the safety of the child. At this point, your child could remain in CPS' care, or the child can be placed with a family member, friend, or other person whom the Court finds suitable. This hearing is incredibly important for you as the parent or guardian of the child because, first of all, you're there. So, the Court gives you the opportunity (and most importantly, your attorney) to explain the situation from your perspective. In particular, you will no longer having the Court solely consider CPS' perspective at this point, because up until now, this is the Court's only source of information. This is your child, so come prepared for the judge to know the real circumstances.

Third, if your case gets this far, you'll have the permanency planning team meetings which are initially held within 30 to 45 days from the removal of your child from your home. It's important to note that while this isn't an actual court hearing, this is a crucial step in your case as all of the parties will be present. In fact, you should bring all of your supportive family members who are also concerned for your child's safety. Here, what CPS terms as the "service plan" will be established which is what everyone can agree on as best for the child.

Fourth, after the service plan is established, a status hearing is held. Time frame for this is at least within 60 days of the child being placed in CPS' care temporarily. At this hearing, the Court discusses the service plan with you and makes sure you understand what it is and what you must do to comply.

The next and fifth step is the permanency hearing. Unfortunately, there may be multiple, but we know that there's at least one in the CPS process. There, the Court will go over the service plan and it will have been a while so the Court will be able to determine who is complying and who isn't and determine whether any changes need to be made to the Plan. Also, the Court could determine at this time that your child would be returned to you until final hearing or continue with either CPS having the child or another guardian. Here, the final hearing date will be announced by the judge. As stated, if the Court determines that other permanency hearings are necessary, then those dates will be announced as well.

Lastly, you will have the final hearing or trial. Here, all the parties are allowed to present testimony and evidence that go to your child's best interest. After this is presented, the Court will make a determination on who will have custody of your child or, how the Court terms it, who will be conservator of your child. The conservator may be you, a person who's been named guardian of your child during the pendency of the case, or it could be CPS.

Regardless of how CPS becomes involved in your family, it is essential that you contact your attorney at Guest & Gray to ensure that your parental rights are protected. In fact, the quicker that you act, the more you ensure that your rights are protected and you ensure that your attorney is there to guide you through the process. That is, a CPS case can be quite difficult and there are several issues that may arise during its pendency. It can be a convoluted process that people frequently become discouraged over. As you've seen through this brief summary of the steps, it can be turn into a long, drawn out process. However, your attorney may be able to stop the process at a particular point in proving that the allegations are false or that removal of your child was unnecessary. The key is to be informed and contact your attorney at any indication that CPS is investigating your family.

How the Courts are Affecting the Parent-Child Relationship: Recent Opinions on the Safest Choice Between Denying vs. Limiting a Parent's Access to the Child

Fri, 23 Mar 2012 15:40:59 -0600

If you are a parent involved in a divorce with your children or in a suit affecting the parent-child relationship, you have to be careful in terms of deciding what conservatorship you ask for, or even agree to. In particular, let's say that the other parent has a lot of personal issues and you would prefer that they not be in your child's life because it would not in the child's best interests. You contact your attorney at Guest & Gray, P.C. in Kaufman County who informs you that there are two choices--either request that the Court deny the parent access to the child; or, request that the parent's access be limited. You want the other parent to be completely denied possession. However, your attorney advises that this may not be the best choice.

This is because of a recent opinion in Fish v. Lebrie, where the Austin Court of Appeals established that when a parent's access to the child is completely denied, that is essentially the same as terminating parental rights. Therefore, if a parent's access is going to be denied, then it must rise to what the Court termed as "extreme circumstances" that would justify keeping the parent from the child. However, the court left it unclear as to what this would mean; but yet also suggested that a parent's access could be drastically limited and not terminated, and that would be okay.

The court might have been unwilling to draw a bright line rule in that particular case because the mother presented evidence that the father emotionally and physically abused the child. But, the father had the child's psychologist testify that this wasn't true.

Even though that case involved conflicting evidence, it seems that it would be safe just to limit the other parent's access to the child rather than completely deny access. That way, one would avoid the issue presented in the Lebrie case. This is because a parent's right to their child is considered constitutional and one of the most protected rights. However, note that this recent appellate opinion doesn't make denying a parent's access to the child an impossible task.

Based upon this, you will need to ensure that the facts of your case do not present the dilemma faced in the Lebrie case and be cautious when seeking to deny the other parent possession of or access to the child.

How the Courts are Affecting the Parent-Child Relationship: Recent Opinions on Possession and Access to Child

Wed, 21 Mar 2012 14:08:00 -0600

You're in the midst of a divorce or suit affecting the parent-child relationship and you're discussing the rights and duties that each parent will have with respect to the child or children. In particular, you are discussing additional ways to have "visitation" with your child outside of the standard possession periods that you will have. For instance, what about "electronic" communication when the child is in the other parent's care? So, you contact your attorney at Guest & Gray, P.C. to inquire about this additional right to your child.

In some instances when one parent won't see the child as often or if the parents reside more than 100 miles apart, courts can include electronic communication provisions when it is appropriate. This means that you can email or, with the advancements of technology, Skype with your children now when they are with the primary parent.

However, the 14th District Houston Court of Appeals recently held that orders that allow you to do so must be specific in order to be enforceable. In fact, that Court held that if there is an electronic communication provision within the final orders, it must comply with Texas Family Code §153.015(c) which lists out 3 requirements for the named conservators.

While all three requirements must be listed in the final orders, in particular, this court focused on the second requirement which states that "each conservator subject to the court's order shall notify the other conservator with the e-mail address and other electronic communication access information of the child." That, the Court held, is a mandatory provision which must be included in any trial court's final orders when it comes to electronic communication.

Therefore, if you've been granted this special access to the child, it's the conservators' responsibilities to notify each other when the child's information changes--per statute and Court orders, you must do so.