Articles Posted in Family law attorney

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?

The Texas Family Code requires that a child in the conservatorship of DFPS attend all permanency hearings. This section also requires that if the court determines it is in the best interest of the child, and the child is older than four, that the court must consult with the child in a developmentally appropriate manner regarding the permanency plan. However, Texas courts do not consistently require children to attend permanency hearings.

Why aren’t children attending the hearings? 

The code has an exception that states that judges can make an individual determination that excuses a child from attending a specific hearing. Apparently,  many judges are deciding that it is not necessary for the children to be at the hearings. Of course, issues with school attendance and actually getting children to court are factors that contribute to children not being able to attend permanency hearings, but options like video conferencing and the fact that a child attending court while in foster care is an excused absence should help to alleviate any of these problems.

A trial court has plenary jurisdiction (complete control) over a case for 30 days after the judge signs the final judgment in a divorce decree. During those 30 days, one of the parties may file a motion for a new trial or a motion to modify, correct, or reform a judgment. That is, either party can file a motion to have the divorce re-tried before a court or if a party is not satisfied with the final judgment given by the court, then the party can file to have it changed. But, each party only has 30 days from when the judge signs the final divorce decree to do so. Rule 329b(c) requires that these motions be in writing and signed by the court for them to be enforceable. Parties cannot give their consent to allow the court to have more control than what it specified in the rule.

Take, for example, the Dallas Fifth District Court of Appeals Case, In the Interest of M.A.C. and M.T.C. Here a Final Decree of Divorce was rendered on August 28, 2013. The Mother filed motions for a new trial and a motion to modify, reform, and correct the judgment on September 6, 2013, well within the 30 days set out in the rule, but the record did not contain a written and signed order from the trial court on either motion. Because there was no written and signed order, both motions were overruled by law on November 11, 2013. But, the record in the case contained a “First Amended Decree of Divorce” signed on January 22, 2014. Thus, the father here filed a motion for a new trial January 27, 2014 were he argued that the trial court’s plenary power had already expired when the First Amended Decree was signed.

The two motions the mother filed were overruled by law November 11, 2013, seventy-five days after the final divorce decree was signed. When she filed the motions, the court retained control over the matter for 30 days after the law overruled the motions. Therefore, the court here had control over this case until December 11, 2013, one hundred and five days after the Final Divorce Decree judgment was signed. The First Amended Decree signed on January 22, 2014 was void because the court no longer had jurisdiction or plenary power over the matter.

What is a Discovery Control Plan? 

Three levels of “Discovery Plans” are found under Texas Rules of Civil Procedure Rules 190.2-190.4. Each section has its own requirements for who falls under what level and how discovery will be organized and completed. In order to get a better understanding of what a “Discovery Control Plan” is, we will discuss three pertinent questions about them: (1) What are they?; (2) Why?, and; (3) How do they work?

What Are Discovery Control Plans?

Usually, it is in the best interest of a child to live with their parent. This is not always the case though, and there are times that a court may need to terminate the rights of a parent. The court will terminate a parent-child relationship if it finds it to be in the best interest of the child and if the parent committed one or more of the statutory acts set out in Texas Family Code 161.001. Abuse and neglect will not always be the only reasons that a parent’s rights have been terminated. Instead, each case that is brought before the court will be determined on a fact based analysis considered by several factors.

How does the court determine the best interest of the child?

In 1976 the court came up with several factors that determine the best interest of the child in Holley v. Adams, and are now termed the Holley factors. These factors include 1) the desires of the child; 2) the emotional and physical needs of the child now and in the future; 3) the emotional and physical danger to the child now and in the future; 4) the parental abilities of the person seeking custody; 5) the programs available to assist the person seeking custody in promoting the best interest of the child; 6) plans for the child by the person seeking custody; 7) the stability of the home or proposed placement; 8) the acts or omissions of the parent that may indicate the parent-child relationship is not a proper one; and 9) any excuse for the acts or omissions of the parent. Not all of the factors listed above will apply to each case brought before the court. The court will use the factors on a case-by-case basis to decide if termination of the parent’s rights is in the child’s best interest.

As a general rule in Texas, all property that you acquire during marriage is community property.  There are some exceptions in which property can be deemed one spouse’s separate property.  These are pretty basic concepts but the issues arise when property is commingled or wasted by another spouse and how does a court compensate the other spouse for that?  For instance, most people may realize that if you buy a home prior to marriage then that home should be your separate property.  However, if there was still a mortgage on the home and your spouse contributed to the mortgage then the contributing spouse now has a reimbursement claim.  Also, reimbursement arises when one spouse “wastes” or spends money from a community property account.  For example, if the parties have a savings account and one spouse spends money from that account and cannot prove it is for necessary living expenses then the other spouse may be able to recover their portion of the funds.  Equitable reimbursement can be a tricky concept that family lawyers have to deal with because it is not as cut and dry as people think and sometimes, even though the law may seem clear.

The important thing is to know the law and understand whether or not you qualify for an equitable reimbursement claim.   If you are making a claim for reimbursement, then you bear the burden of proving that expenditures were made and that you have a right to be reimbursed for those expenditures.  So the two issues to focus on are (a) either funds of one estate were used to enhance another estate without receiving any benefit (separate property money used to pay off a debt that arose during that marriage; separate money used to put towards the purchase of a community asset) OR (b) the other spouse “wasted” the funds of the community estate.  The latter is proved by stating that the “wasting spouse” has committed constructive fraud—they spent your portion of the estate without your knowledge or consent.  This is not to be confused with actual fraud which requires malice intent.  If you prove this, then your spouse must defend themselves and prove that it was “fair” spending on such things as necessary living expenses.   The spouse defending themselves can always have a claim for an offset which is where they state that they are owed some deduction in the claimant spouse’s total reimbursement because they may have done some other form of reimbursement.  For example, you may have a claim for reimbursement of $50,000.00 but your spouse can claim an offset if they purchased something for you with a portion of those funds (i.e. a car or paid off some debt).

We have several cases involving claims of reimbursement in Kaufman County.  It is a normal occurrence in divorces, especially if people have separate property coming into the marriage or inherit something during the marriage.  If you feel that you are eligible in any way for an equitable reimbursement claim or have questions regarding property division in a divorce in general, please contact Guest & Gray and schedule a consultation.

If you have a current pending divorce or suit affecting the parent-child relationship then you most likely have temporary orders in place.  If not, in most family law cases you do want to ensure that you have temporary orders granted by the Court so that you know what you should and should not be doing while the case is pending.  That is, temporary orders set the status quo of your case and instruct the parties as to their rights and duties with respect to their children, property, debts, and other issues in the case.  For instance, you may have been granted exclusive use of the marital residence, your vehicle, and primary possession of the children.  These are all essential things to establish in a case without delay, unless you and the other party are working amicably towards a final resolution.

Enforcement of Violated Temporary Orders

Once the Court has granted the temporary orders, they are enforceable against both parties.  If any portion of those orders is violated by either party, there are options.   The other party may have been ordered to pay child support and they may not be doing that and you may need that support in order to survive.  Or, the other party may have been ordered to participate in counseling or drug testing and they not be doing so.  It might even be that the other party will not stay away from the property or give you the car you were awarded temporarily.  All of these issues are concerning and when you are not getting the results from the provisions the Court put into place it can be very frustrating.  But, you do have recourse.  Typically, you can file an enforcement action of temporary orders asking that the wrong be corrected and asking for attorney’s fees for having to go back to Court and ask the judge to tell someone to do what they were already ordered to do.  If it is a failure to pay child support, the violating party also faces possible jail time.  You will have to be able to prove that the temporary orders were put in place, prove the violations, and then the burden becomes the other party’s to state why they did all of those things.  Depending upon those reasons, the Court may be a little lenient upon the person.  It is always a hope that the Court would at least grant your attorney’s fees for your attorney’s time to draft the enforcement and have the hearing.

What is the law in Texas on marriage fraud?

The first step in determining whether or not you qualify for an annulment based upon fraud is to ensure that you fit within the parameters of the law on this issue.  Specifically, Texas Family Code Section 6.107 states that, “a trial court may grant an annulment of marriage to a party to the marriage if (1) the other party used fraud, duress, or force to induce the petitioner to enter into the marriage; and (2) the petitioner has not voluntarily cohabitated with the other party since learning of the fraud or being released from the duress or force.”  Therefore, if someone used fraud to get you to marry them and you stopped living with them after you learned of the fraud, you qualify so far.  The next question becomes, what constitutes as fraud?  Many Texas Appellate Courts have addressed this issue and have come up with a standard as follows, “Fraudulent inducement is established by proving that a false material representation was made that (1) was known to be false when it was made; (2) was intended to be acted upon; (3) was relied upon; and (4) caused injury.”  See Desta v. Anyaoha, 371 S.W.3d 596, 600 (Tex. App.—Dallas 2012, no pet.); Zhang v. Zhang, not reported.  Therefore, if your spouse says something to you prior to marriage that is false and you depend upon that false statement to marry them and then you find out and it has caused you injury in any way you might have a strong legal argument for an annulment.

What is an example?

In Texas, if a mediated settlement agreement is properly executed you cannot challenge it.  Texas Family Code Section 153.0071(d) and (e) mandate that courts shall issue an order in compliance with a mediated settlement agreement.  This is why it is so important to have an attorney attend mediation with you.  You cannot go back after the fact and change it.   When the mediated settlement agreement is signed and on file with the court, that is it.  Those are the terms and they cannot be changed.  Many have tried and failed.

Why Would a Party Want to Back Out on a Mediated Settlement Agreement?

Mediations can sometimes be very difficult and long days.  You typically do not reach an agreement until the very last hour after you have already been there for eight hours without a break.  At this point, you are exhausted and you may not be thinking clearly.  So, you might forget something.  Also, a lot of parties have what we call “buyer’s remorse” in that you thought it sounded good at the time but now in practice it is not working out.  For instance, a visitation schedule for a child—a party may end up wanting more or less time due to demanding schedules and want that changed.  Or, a party may want to say that they actually wanted more child support than what they originally agreed to and they want to challenge that now.  However, the law is pretty clear that you cannot.

If you have a final decree or final order in a family law case with an obvious mistake from what the trial court ordered or the parties agreed, you can get it fixed through what is called a Nunc Pro Tunc.  The key is that this mistake has to be a clerical error—did it mix up the judgment of the court.  It cannot be one that requires “judicial reasoning and determination” or in other words any thought process on the judge’s part.  If it is in fact a clerical error, then under Texas Rules of Civil Procedure, the trial court can fix this clerical error at any time.

What is an Example of a Clerical Error?

In Bernardo Reyes v. Olga Reyes, the Amarillo Seventh District Court of Appeals had to address this issue.  In that case, the trial court made an initial order on the record divorcing the parties and making appropriate orders regarding conservatorship and child support.  Most importantly, the trial court ordered that mother be the parent who has the exclusive right to designate the primary residence of the children and father to pay child support. The trial court rendered the orders on the record but the final decree was never actually signed by the court until three years later.  The problem was that the actual decree ordered mother to pay child support.  Mom filed a nunc pro tunc to fix this obvious error.  The trial court entered the nunc pro tunc, correcting the error that it was actually father who was supposed to be paying child support.  Father challenged that.  In reviewing the trial court’s record, the appellate court was able to determine that this was in fact a clerical error and affirmed the trial court’s ruling.