Articles Posted in Appeal of Divorce

Can I appeal my divorce while still accepting benefits from the parts of the judgment that work in my favor?

As with most questions asked about the law, the answer to whether you can appeal a part of your divorce while accepting benefits from the parts of the divorce you do like is, it depends.  More accurately, the answer is, probably not. This is because of a legal concept called estoppel.

What is estoppel?

What if I don’t like how the court divided the property in my divorce? Can I appeal it?

 You can try and appeal the courts division of your property in a divorce settlement but the appeals court will have a certain standard that they will use when reviewing the trial court’s decision. The appellate court is going to review the court’s decision by using an abuse of discretion standard. What this means is that the appellate court will review the case and make sure there was sufficient evidence for the trial court to base its division of property on. Then, based on that evidence, the appellate court will decide if the trial court’s division was reasonable. If the trial court can show that its decision is based on meaningful and firm evidence, then the appellate court will not overrule the trial court’s division of property.

In my divorce, the court did not divide the property equally, is this fair?

How do I prove that I am in a common law marriage?

Texas is a state that recognizes common law/informal marriages but certain elements must be met to prove that a common law marriage between a man and woman exists. Section 2.4019(a)(2) of the Texas Family Code establishes these elements. If a person wants to prove that an informal marriage existed, he or she must be able to prove each of the following. First, it must be established that both persons have made an agreement to be married. After this agreement has been made, during the time that the informal marriage is alleged, both persons must live together in Texas, as husband and wife. While living together it must also be shown that both persons represented to others in the community that they are husband and wife.

In a Texas First District Court of Appeals case, Miller v. Prince, Miller was unable to establish that she and Prince had a common law marriage because she did not live with Prince during the relevant times of the alleged common law marriage. During the course of the relationship, Miller moved to California and then returned to Texas in 1994. When Miller returned to Texas in 1994, she did not live with Prince and therefore was unable to meet that element needed for a common law marriage to be established. A person must be able to prove all of the listed elements when trying to establish a common law marriage. Because Miller and Prince did not live together at the relevant times the court found there to be no common law marriage. Even if Miller had been able to offer some proof to the other elements of common law marriage, it still would not have been granted because all criteria must be met.

You have just finished a long bench trial in your divorce and you do not feel that the trial court was correct in its division of your assets and liabilities.  In fact, you feel that the judge was completely wrong and you got the short end of the stick.  So, you wonder what you can do about it.  You absolutely can appeal, but you have a short window frame in order to do so and it is imperative you take certain steps in appealing.

The 7th District Court of Appeals in Amarillo makes this fact abundantly clear in Kenneth Dale Rodgers, Appellant vs. Mary Elaine Rodgers, Appellee in determining whether or not (a) “the trial court abused its discretion in the division of the property” which (b) “materially affected a just and right division of the marital estate.”   In that case, the husband was very unhappy with the property division and he appealed.  However, the husband failed to request findings of fact and conclusions of law from the trial court within the required amount of time. Therefore, the appellate court had no idea what the basis of the trial court’s ruling was and was forced to go along with it.  This is because, as the Court of Appeals held, you must request findings of fact and conclusions of law from the trial court and the trial court must then file those within a certain period of time. This allows the Court of Appeals to determine why the trial court held what it held.  The record sometimes helps, but findings of fact and conclusions of law are obviously more solid and preferred by the appellate courts.

When you have a bench trial (trial before judge, not jury), Texas Rules of Civil Procedure Rules 296 and 297 mandate that you must file your request for findings of fact and conclusions of law from the trial court “within twenty days after the judgment is signed” and then the trial court must “file its findings of fact and conclusions of law within twenty days after a timely request has been made.”  If you fail to do this, then “the trial court is presumed to have made all findings of fact necessary to support its judgment, and it must be affirmed on any legal theory that is supported by the evidence.” Rodgers v. Rodgers.

You have a final decree of divorce and you were either ordered to surrender a certain asset to your ex-spouse and you have not or you are the ex-spouse who is the recipient of the asset and have not received it yet.  Regardless of which situation you are in, one can be pretty certain that an enforcement action is in your near future.  The question becomes what type of relief can be sought on this type of case.  This question is answered clearly as a big “no” in In re Cherilyn Ann Kinney, Relator by the Fifth District Court of Appeals in Dallas.

In some suits for enforcement (most commonly in suits to enforce child support), one means of relief sought is jail time–confinement of up to 60 days in county jail to be exact.  However, in suits for enforcement of property division where one spouse was ordered a certain amount of money in the decree for a debt, lien, retirement division, etc. then jail time is not appropriate.  In this particular case, the wife was awarded one of the homes and to compensate the husband he was awarded$40,000.00 secured by an owelty lien on the residence awarded to wife which the wife had to pay within six months of signing the decree.   Needless to say, she did not pay the $40,000.00 within the time ordered and so her ex-husband filed an enforcement to make her do so.  Unfortunately, they asked for jail time and the trial judge did just that and the wife was arrested on the spot and placed in the county jail.

On appeal, the Court of Appeals held that the “Texas Constitution provides, ‘No person shall ever be imprisoned for a debt’.” Tex. Const. art. 1, §18.  In fact, the Texas Family Code is specific as to what property divisions are enforceable by contempt and that contempt does not mean imprisonment.  Specifically, Texas Family Code Section 9.012(b) states “A court may not, enforce by contempt an award in a decree of divorce or annulment of a sum of money payable in a lump sum or in future installments payments in the nature of debt, except for (1) a sum of money in existence at the time the decree was rendered; or (2) a matured right to future payments.  Therefore, the Court of Appeals did a legal analysis and concluded that the only way to determine if contempt is an option in an enforcement action, the decree must be specific enough—“the divorce decree must indicate the funds existed at the time the decree was rendered or specify particular community funds from which the amount is to be paid.”