File Breach of Contract Suit In Any District Court

Houston Court of Appeals holds that any district court has jurisdiction to hear breach of contract actions based on provisions in a divorce decree. Chavez v. McNeely ___ S.W.3d ___, 2009 WL 1331854 (Tex. App.—Houston [1st Dist.] 2009, no pet. h.) (5/14/09)

Facts: In 6/01, husband and wife divorced. On 6/29/01, district court entered an “Agreed Final Decree of Divorce.” That agreement required wife to provide as much “as possible” for her husband’s needs, “limited only by her personal financial situation.” In 7/03, husband sued wife for breaching that provision in same district court. In 4/09, husband nonsuited his case and re-filed in Waller County. Trial court rendered judgment for husband on breach of contract. Wife appealed, claiming that trial court lacked jurisdiction and that the agreement was unenforceable.

Held: Reversed and rendered.

Court of Appeals Opinion: Trial court is a court of general jurisdiction under Art. 5, § 8 of Texas Constitution. Therefore, there is a presumption that it has jurisdiction unless exclusive jurisdiction had been conferred to the district court that rendered the decree. Under TFC § 9.001, a party “may request enforcement” of a divorce by filing suit in the court that rendered the decree. “May” is permissive, not mandatory. Therefore, the original district court did not have exclusive jurisdiction. Contracts are enforceable only if they are definite enough that a court can understand the parties’ obligations. Courts have held terms such as “as much as needed” and “fair market value” to be too indefinite to enforce. A requirement that wife provide as much as possible is also too indefinite to enforce. Accordingly, trial court erred in rendering judgment for husband.

Interesting distinction in Chapter 9 – that you can file a breach of contract action for enforcement of the divorce decree in a court other than the court that rendered the decree. I, a board certified family law specialist in Texas, wonder if this case will have the effect of encouraging forum shopping?

This commentary originally appeared in the June 2009 Section Report of the State Bar of Texas Family Law Section, where I serve as guest editor.
 

Tips for controlling attorney's fees.

Make no mistake about it, divorces can be quite expensive.  Notwithstanding, there are several ways that you can help reduce the amount of attorney and paralegal fees you incur in your case.  As a Dallas divorce attorney our office has found that the following are quite helpful in controlling costs:

  1. Communicate with your attorney via email.  A typical day for me involves reviewing hundreds of emails and returning several phone calls.  Putting your thoughts down in writing helps you to single out what your concerns are when you talk to me.  With that in mind, when you email me, try and be as concise as possible.  In doing so I won't have to dig through your email to determine what the question or concern is.  
  2. Keep accurate financial records.  In all likelihood you will be required to file an inventory and appraisal of the community and separate estates.  By keeping up with your financial records, or at a minimum knowing where to readily obtain them, you can greatly reduce costs.  If you don't keep accurate records, or know where to get them, either I or my staff will have to obtain them for you and then sift through them.  
  3. Understand that while I genuinely care about you and your case, I have to charge you for my time.  With that in mind, try to limit our communications to the subject at hand.  We are genuinely empathetic to all our clients and are very passionate about what we do, but if your emotions are running high, you can save a good deal of money by talking to a counselor, friend, clergy member or family member.
  4. When our office sends you something for your review and approval, please do so as soon as possible.  If I or my staff have to contact you to remind you about a task, you will incur fees.

If you keep these tips in mind, you can greatly reduce the amount of attorneys fees in a divorce case.  These tips are simply guidelines and not hard and fast rules.  When seeking out an attorney, it is completely appropriate for you to ask how you can help control costs.  If the prospective attorney does not have an answer, I suggest you keep looking. 

Grandparent Access to Grandchild Over Parent's Objection New Law

House Bill 1012, passed by the Texas Legislature and awaiting Governor Perry's signature, changes the Texas Family Code provisions regarding access by a grandparent to a grandchild over the objections of a parent.  The statute allows a court to grant access over a parent's objection by a grandparent to a grandchild.  This changes the prior law that required a court to grant access upon meeting the terms of the statute.  Now, a court may or may not grant the access.  If the court does grant access over a parent's objection, the court must enter certain findings about whether the grandparent has overcome the presumption that a fit parent acts in the best interest of that parent's child by proving that the denial of access to the child would significanly impair the child's physical health or emotional well-being. 

Click here to see the text of HB 1012.

This new law further erodes grandparents' access to grandchildren, particularly in circumstances where one parent has passed away and the other parent refuses to maintain a relationship with the deceased parent's family.  Instead of requiring the court to award access upon meeting the already high standard of proof set out by the US Supreme Court in Troxel v. Granville, the new law allows a court to either grant access or not grant it, even in the face of the required proof.

As a Dallas family law attorney, I have found the Dallas County family court judges to be very amenable to grandparent access to grandchildren.  I have had a couple of cases where one parent passed away and the other parent denied a relationship between the deceased parent's family.  In those cases, the judges have all been very empathetic to the grandparent's situation and wanted to encourage that relationship.  But, I'm sure some judges are not so inclined.

Alimony in Texas?!? Well, sort of . . .

One of the questions we are frequently asked is whether Texas allows alimony.  Before going into the substance of this question, it is important to note that the Texas Family Code calls 'alimony' spousal maintenance.  Given the frequency of this question, I'm going to break the answer up into a two part mini-series.

Spousal maintenance is available in certain very limited circumstances.  Under Chapter 8 of the Texas Family Code, spousal maintenance is available for:

  • spouses of long-term marriages that lack sufficient property to meet his or her reasonable needs, and cannot support themselves because of his or her disability, a child of the marriage's disability, or his or her lack of earning capacity; OR
  • The spouse of a convicted spouse for a criminal offense that constituted an act of family violence.

Tex. Fam. Code Sects. 8.051(1) - (2).  Courts have held that the spousal maintenance provisions under Chapter 8 of the Texas Family Code were promulgated to provide temporary and rehabilitative support for a spouse after the dissolution of a marriage.  Although the spousal maintenance provisions were first enacted in 1995 to protect long-term homemakers, over the past 14 years they have been expanded greatly.  Notwithstanding this expansion there are significant obstacles that present themselves along the way to awarding spousal maintenance.

Even if the court orders spousal maintenance there are a litany of factors the court must then consider in determining the amount to order.  These factors (in no particular order) include: 

  • The seeking spouse's financial resources;
  • The financial resources of the spouse from whom maintenance is sought;
  • The relative financial resources of both spouses;
  • The spouses' contributions to each others earning capacity;
  • The amount and value of the separate property brought into the marriage;
  • The duration of marriage (in excess to the required 10 year duration if maintenance is not sought under the family violence qualification);
  • The age, employment history, earning capacity, and physical/emotional health of the spouse seeking maintenance;
  • Whether the parties committed any marital misconduct (i.e. extramarital affairs);
  • The contributions as a homemaker by the spouse seeking maintenance; and
  • The education and employment skills of both spouses.

There is a final hurdle that has to be cleared on the road to spousal maintenance -- the duration of the award.  As a general rule, courts cannot order spousal maintenance for more than three years.  Tex. Fam. Code Sect. 8.054(a).  Additionally, spousal maintenance must be limited to the shortest reasonable period.  Thus, spousal maintenance could be ordered for a year in duration.  Like most rules of law, there is an exception to this.  The duration of spousal maintenance can exceed three years if the spouse seeking maintenance is unable to support him or herself because of a physical or mental disability; or is the custodian of a child of marriage who has a physical or mental disability.  Id. at Sect. 8.054(b). 

As a Dallas divorce lawyer, I frequently encounter individuals who are either completely unaware or misinformed about the spousal maintenance provisions.  If you believe you fall into either of the scenarios where spousal maintenance is available, please don't hesitate to contact our office.

In the next part of this mini-series I'll address enforcement and collection of spousal maintenance awards.

 

A Little Divorce Humor To 15 Fifteen Funniest Quotes About Divorce

15. “Ah yes, divorce…from the Latin word meaning to rip out a man’s genitals through his wallet.” - Robin Williams

14. “The difference between a divorce and a legal separation is that a legal separation gives a husband time to hide his money.” - Johnny Carson

13. “The only time my wife and I had a simultaneous orgasm was when the judge signed the divorce papers.” - Woody Allen


12. “I’m an excellent housekeeper. Every time I get a divorce, I keep the house.” - Zsa Zsa Gabor

11. “To get over my divorce, I got a prescription to live at the Playboy mansion for a while.” - James Caan

 

10. “I’d marry again if I found a man who had $15 million and would sign over half of it to me before the marriage and guarantee he’d be dead in a year.” - Bette Davis

9. “She cried - and the judge wiped her tears with my checkbook.” - Tommy Manville

8. “I can’t get divorced because I’m a Catholic. Catholics don’t get divorced. They stay together through anger and hatred and festering misery, just like God intended.” - Lenny Clarke

7. “I look a divorce this way: it’s better to have loved and lost, then to live with that bitch for the rest of my life.” - Steve McGrew

6. “Marriage isn’t all that it’s cracked up to be. Let me tell you, honestly. Marriage is probably the chief cause of divorce.” - Larry Gelbart

 

5. “Divorce sucks. Let me tell you, after five years of marriage, it is devastating to have the person with the good credit move out.” - Rich Vos

4. “Workaholicism is such a tough addiction to get over. I had to divorce my wife because she was an enabler.” - Dave Mordal

3. “What happened? Satan was busy?” - Sam Kinison on finding out his wife had hired lawyer Marvin Mitchelson to represent her in her divorce case against him.

2. “I can’t take his genius any more.” - Rita Hayworth on why she divorced Orson Welles

1. “You know why divorces are so expensive? Because they’re worth it.” - Willie Nelson
 

The 15 Funniest Quotes About Divorce
Darndivorce.com <-- I love this site!

Thank you to Whip It Out Comedy for their hilarious collection of divorce quotes.

Standing for Step-father to Sue for Custody

San Antonio Court of Appeals holds that a trial court erred in dismissing suit for lack of standing when there was conflicting testimony. In re Y.B., ___ S.W.3d ___, 2009 WL 1405166 (Tex. App.—San Antonio 2009, no pet. h.) (5/20/09)

Facts: Wife adopted children in 12/04 before husband was in the picture. On 4/22/07, husband and wife married. On1/21/08, husband moved out of wife’s house. Husband filed a SAPCR seeking to be appointed MC of wife's children on 3/10/08. Wife filed a motion to dismiss and a plea to the jurisdiction. Trial court held a hearing with conflicting testimony about the extent of husband’s involvement with the children and granted the motion to dismiss. Trial court also awarded attorney’s fees to wife under T.R.C.P. 13.

Held: Reversed and remanded.

Opinion: TFC §102.003(a)(9) grants standing to any person who cares, controls and possesses a child for at least six months prior to and not more than 90 days before the date of filing of a petition. Witnesses gave conflicting evidence as to husband’s involvement with the children. Since there was a question of fact regarding husband’s standing, trial court erred in dismissing husband’s petition. Therefore, husband’s pleadings were not groundless, and trial court erred in awarding attorney’s fees.

Section 102.003(a)(9) is probably THE most litigated section of the code right now. I currently have several cases pending in Dallas County family law courts which are testing the limits of this section. Look for more cases to come out on how far the courts of appeals, and maybe ultimately the Texas Supreme Court, will extend this vague section.

This commentary originally appeared in the June 2009 Section Report of the Texas Family Law Section newsletter, where I serve as a guest editor.
 

Do Sanctions Apply to Best Interest of Child?

New case out of Dallas Court of Appeals holds trial court did not abuse its discretion by reversing sanction imposed by associate judge.  In Re F.A.V., ___ S.W.3d ___, 2009 WL 1314165 (Tex. App.—Dallas 2009, no pet. h.) (5/13/09)

Facts: Father and mother filed for divorce. On 6/23/06, associate judge appointed a parenting coordinator and ordered father and mother to pay part of his fee. On 8/24/06, associate ordered father and mother to pay for 12 more hours of work. On 10/4/06, associate judge ordered mother to pay $375 by 10/6/06 or face sanctions, including striking her pleadings under TRCP §215.2(b)(5). On 10/12/06, father moved for sanctions for mother’s failure to pay. On 11/15/06, associate judge granted father’s motions and struck mother’s pleadings. Mother requested a de novo hearing before trial court on the sanctions. At the de novo hearing, the district 27
court found that mother had paid the coordinator and reversed the associate judge’s ruling. Father appealed the final ruling on the sole issue that trial court abused its discretion by reversing the associate judge’s order.

Held:  Affirmed.

COA Opinion:  District courts review associate judge’s orders de novo. A district court’s decision to grant or not grant sanctions is reviewed on an abuse of discretion basis. There are no cases where an appellate court found a trial court abused its discretion by not striking a party’s pleadings. Striking pleadings is an extreme measure and rarely appropriate in suits affecting the parent-child relationship. Therefore, trial court did not abuse its discretion.

In my experience as a divorce lawyer in Dallas, Texas, the best interest of the child is the overriding concern in any SAPCR proceeding. This requires the trial court to prioritize the child’s best interest over sanctionable conduct of the parties. To limit a party’s proof at trial as a sanction also necessitates a limitation on the evidence to be presented regarding the child’s best interest. For the trial court to make a fair determination on the best interest of the child, both parties must be allowed to present evidence. Thus, a trial court must weigh the best interest of the child in a fair trial when considering sanctions against a party.

I serve as a guest editor for the State Bar of Texas Family Law Section newsletter.  This commentary originally appeared in the June 2009 edition.

Divorce Recession -- Cold as Ice or Hot as Ever?

It seems like its everywhere.... reports that divorce rates are down.  Is it the great divorce recession of 2009?  Are spouses everywhere deciding that they'd rather stick out their lukewarm marriages rather than divide in half the what's-left-half of what they used to have before the economy went down the tube?  (And, did that even make sense?)

The Wall Street Journal today (July 13, 2009) heralds "What God Has Joined Together, Recession Makes Hard to Put Asunder".  Reporter Jennifer Levitz cites to spouses having to live together in the same house while getting a divorce.  One couple discussed how they work out mommy upstairs and daddy in the basement arrangements, including discussing their new dating woes, scheduling dates at different places so the spouses don't run into each other, and deciding how to handle babysitting so both spouses can go out with their new paramours on the same night.

The LA Times posits today (July 13, 2009), "Divorce and hard times: Economic woes often cause marital splits, right? Well, not so fast."   This recession is so bad that you can count divorce lawyers among those professions that have taken a hit, cites reporter Gregory Rodriguez. "Can't stand your boring husband? Thinking of calling it quits? Well, you should have mustered the nerve to leave him well before this economic crisis. Now you might not be able to afford to live without him, literally."

Ond on July 4, 2009, Newsday wondered whether the Recession Adds To the Financial Burden of Divorce, pointing to a couple who wanted to divorce and split the $1.5 million in equity in their home until their house value plummeted, making the couple question whether divorce was the best option or whether they should stay in the marriage for the (lack of) money.  Falling pension values also present a problem in providing property to divide in a divorce.

The Miami Herald questions "Is divorce rate a leading economic indicator?"  Michael Gilden says,

The depths to which our country's economy has sunk over the past year may have a correlation with this recent downward divorce trend. Many divorce lawyers had always maintained the opinion that divorce law is a recession-proof specialty. In good economic times, people tend to seek freedom from bad marriages so as to enjoy their wealth without the ties that bound them. In bad economic times, couples fought about having less money, which is also one of the leading causes of divorce.

The current economic climate, however, is like nothing anyone has seen in this country for generations. With the decline of the housing market, divorcing couples are no longer assured of a division of equity in what was most people's most valuable asset, their home. Without the proceeds from the sale of a marital residence, many people did not know where they would acquire funds to purchase a new home for themselves. The situation only became worse as the stock market plummeted and peoples 401(k)'s became 201(k)'s and as securing loans and credit became nearly impossible. At some point, there essentially became an economic disincentive to seek a divorce.

So, is it really true that people get divorced when times are good and more people get divorced when times are bad?  Or, are people waiting out the tidal wave of the recession in their lukewarm marriages, waiting for the first glimmer of hope in the economy to kick their spouse to the curb nad leave with half-of-what's-left in the dawn following the storm?

As a board certified divorce specialist for 18 years and a Dallas Divorce Lawyer, I see the 2009 divorce trends as being abnormal, but not necessarily down from prior years.  For example, usually Janaury is a big month for filing new divorces because folks usually make new year's resolutions to "finally do something".  This year, January was a lackluster month. But, for the first half of the year, my practice is only off by about 10% from last year.

I think some of the analysis of whether the economy is affecting divorce depends on the economic status of the couple.  For high income/asset couples, the issues becomes one of prioritizing where they spend their less-than-before decreased discretionary spending.  They might rather spend their income on a vacation, new car, or fine piece of jewelry.  But, if they want it badly enough, they can shift those funds to accommodate a divorce.

On the other hand, folks who live close to their means, with little in the way of a rainy-day-fund, may not have the luxury to reprioritize their finances to add an additional residence for the spouses leaving the residence and two divorce lawyers to the budget.  Those folks may be sitting still until the economy glimmers hope.

If you are the high earning spouse who can afford to take the house or stocks (or other devalued asset) and hang on to it until after the economy recovers.  Where, for the housewife or lower earner spouse who might rely on the division of assets for survival post-divorce, this is definately not the time to get divorced.

It may hold true, as Gilden states, that you can just the beginnings of recovery by watching for divorce rates to go back up, when people finally say they've had enough of this economy to wait on getting a divorce.

For more on this discussion, see my post April 30, 2009: Is Divorce A Good Idea in This Recession? 

See my other blog posts on the economy and divorce:

January 12, 2009: Increase in Child Support Modifications Seen in Dallas Divorce Courts

December 30, 2008: Divorce and Real Estate Market

Now is a good time for a Dallas Divorce

October 21, 2008: Financial Infidelity: Money and Marriage

October 8, 2008: Dallas Couples Shirking Divorce Amid Economic Woes

September 29, 2008: Bad Economy Makes Divorces Tougher

 

'Til death do us part, or until I sue you.

On July 8, 2009, the Tyler Court of Appeals affirmed a judgment for monetary damages in favor of one spouse against the other.  In Colvin v. Colvin, the husband sued his wife for personal injury damages caused by his wife in an automobile collision.  Wife was the driver of a car and the husband was the passenger.  Wife and a third party were in a collision, third party sued wife, and then husband intervened in the lawsuit and sued third party and wife (husband and wife were married at the time and are still so). 

The trial court awarded damages to husband against wife, and wife appealed.  On appeal, the Tyler Court Appeals affirmed the trial court's ruling.  Interestingly, the Colvin opinion does not mention whether or not husband and wife are still married. 

The Colvin opinion presents an interesting situation.  Under Texas law, community property is divided into two types: (1) joint management; and (2) sole management.  The community property characterization is important because if one spouse is held liable for a tort (i.e. negligence) during marriage, then the court may satisfy the judgment by looking to the community property jointly managed by the spouses as well as the sole management community property of the non-culpable spouse.  In result in Colvin is that in a sense the trial court could look to the community property jointly managed by the husband and wife, and the husband's sole management community property, to satisfy the judgment.  

As a Dallas divorce lawyer, our clients frequenltly are unaware of the concepts of joint and sole management community property.  In a nutshell, if either spouse is held liable for tortious conduct during marriage, then all property other than the non-culpable spouse's separate property may be used to satisfy the judgment. 

No Debtors Prison for Failing to Make Car Payment

A new case out of the Tyler Court of Appeals hold that a contempt order ordering imprisonment for failure to make car payments required by a divorce decree is void as imprisonment for debt. Also, the court holds that  a contempt order may not be used to make substantive changes to divorce decree. In re White, ___ S.W.3d ___, 2009 WL 1153396 (Tex. App.—Tyler 2009, orig. proceeding) (4/30/09)

Facts: Father and mother divorced on 12/29/05. Trial court appointed both JMC but gave father exclusive right to choose child’s primary residence. Trial court required both parties to give 60 days’ notice of intended residence change and father to make payments on wife’s car. Trial court ordered that the father make child available at his residence for mother to pick up. In 2006, mother filed a motion for enforcement. Trial court found that father had fraudulently notified mother that he was moving, had not surrendered child to mother at court-scheduled times and had failed to make car payments. Trial court held father in contempt and ordered him confined for 30 days. It suspended based on father paying attorney’s fees and mother’s loss resulting from repossession of car. It also required that the delivery of the child be limited to Anderson County. Father paid funds into trial court’s registry and petitioned for mandamus for district court to vacate contempt finding.

Held: Mandamus granted as to the car payments and methods of access to child and denied for the other findings of contempt.

Tyler Court of Appeals Opinion: A court cannot order confinement on the basis of a debt. The car payments are part of a division of property; they are not assets held in trust. Therefore, the obligation to make payments is a debt even though a divorce decree created it. Since it is not enforceable by confinement, the trial court abused its discretion in the contempt order. The only way to make substantive changes to a divorce decree is under TFC §156.001. As limiting delivery to Anderson County was a substantive change, trial court abused its discretion in its probation order. The contempt finding for husband fraudulently claiming a change of address was justified.

Any Dallas family law attorney knows that our country was formed based on the concept that a party could not be imprisoned for failure to pay a debt. We do not have debtor's prison in America! Just because a debt obligation is listed in a divorce decree makes it no less a debt. Family law attorneys should counsel their clients about the seeming lack of enforceability of the division of debts and structure the settlement of the estate in such a way that protects the enforceability of the court’s orders. For example, if the decree had left the car payment as wife’s obligation and ordered husband to pay maintenance in the amount of the car payment to wife, the wife would have had better enforceability options. Or, the car payment could have been awarded as additional child support. But, simply putting a debt pay-ment in the division of assets is insufficient to protect the client on whose behalf the payment is to be made.

This commentary originally appeared in the June 2009 Section Report of the State Bar of Texas Family Law section, where I serve as guest editor.
 

Dallas Divorce Lawyer Quoted in Dallas Morning News

Dallas Divorce Lawyer Michelle May O'Neil was quoted in the July 2nd, 2009 edition of Dallas Morning News in Emily Ramshaw's article Child Support Suffers As Economy Suffers.  The story lead Thursday's edition with Ms. O'Neil's picture appearing on page 14A.  

Here's the excerpt from the article pertaining to Ms. O'Neil:

Michelle May O'Neil, a family law attorney with clients in Dallas and Collin counties, said Crouse's case is common. She's seen a steady uptick in child support-paying parents who have either lost their jobs or had their hours reduced.

O'Neil said family court judges, who traditionally have issued permanent rulings, are giving these financially strapped parents temporary relief instead.

If someone is unemployed, she said, a judge generally will temporarily reduce child support, and then call a review hearing a few months later.

"A kiddo's expenses don't go away just because the economy is tight," O'Neil said. "Judges are giving people a Band-Aid so they can find another job."

 

Sex, lies and infidelity.

Infidelity is a frequent topic brought up by our clients.  Texas is a no-fault divorce state which means if a spouse wants a divorce, the other spouse is not required to have committed a "bad act."  See Tex. Fam. Code Sect. 6.002-.007.  Lately there have been several public figures that have revealed their extramarital affairs.  Coupling this with the frequency adultery is brought up by our clients, a primer on adultery as a ground for divorce is appropriate. 

Under Section 6.003 of the Texas Family Code, adultery is a ground for divorce.  As a Dallas divorce lawyer, my experience is that adultery usually is not the cause of divorce.  Although infidelity is is commonly reported as a cause of divorce, several studies show that the majority of couples who discover infidelity remain married to the unfaithful spouse for several years following their discovery.  Additional studies at the University of Washington and University of North Carolina report that occurrences of adultery are declining and that the strongest risk factor for adultery is one occurring outside of the marital relationship - opportunity. 

Under the adultery fault ground found in the Texas Family Code, one spouse is required to show that the other engaged in sexual intercourse with one not their husband or wife.  Without diving into semantics, Texas courts take a literal approach in construing the term intercourse.  As a result, proving adultery is very difficult to do. 

Assuming a party to a divorce is able to prove adultery occurred, courts take different approaches in deciding what impact that conduct will have in dividing the marital estate.  It comes as a shock to most people that a lot of courts take a "so what" approach - meaning adultery has little, if any, impact on the remainder of the divorce proceeding.  This is especially true if the couple's status quo prior to filing for divorce was one of marital discord.  Courts do, however, examine adulterous conduct very closely when it was committed in front of children of the marriage; the timing of the affair prior to filing for divorce; and where the adulterous conduct occurred.  The minority of courts consider adultery an atrocious act, hate what it does to the marriage relationship, and divide the marital estate disproportionately as a result. 

Although a fault ground for divorce, adultery is also an act of betrayal against your spouse.  Committing adultery causes an untold pain which rapidly turns into anger.  This anger will cause the innocent spouse to inflict the most amount of pain and burden on the other spouse during the divorce proceeding.

If you suspect that your spouse is having an affair, and you are considering ending the marriage, you should understand that proving adultery is very difficult, and if the offensive conduct did not occur in front of the children of marriage, adultery generally does not cause a court to deviate a significant amount from a 50/50 split of the community property.  Finally, remember that you do not have to navigate the divorce process on your own.  Contact a competent Dallas divorce attorney to help guide you through the maze. 

 

 

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Statement of Points Unconstitutional As Applied Says Texas Supreme Court

Texas Family Code requirement of filing a Statement of Points in a government termination case within 15-days of the signing of the final order is unconstitutional as applied when it bars parents from raising an ineffective assistance of counsel claim. In Re J.O.A., ___ S.W.3d ___, 2009 WL 1165303, 52 Tex. Sup. Ct. J. 714 (Tex. 2009) (5/1/09)

Facts: Mother, with one child already, gave birth to twins in 2005. At that time, mother and children tested positive for cocaine. Court appointed TDFPS as SMC of all three children. TDFPS created a service plan that parents did not adequately follow. In 2/07, case proceeded to bench trial. Trial court terminated both parents’ rights to the twins and appointed mother’s mother as SMC of older child. On 2/21/27, mother’s counsel filed notice of appeal and motion to withdraw. On 2/22/07 father’s counsel did same. Neither filed a statement of points as required by TFC § 263.405. Trial court appointed replacement counsel after the fifteen day deadline set out in TFC § 263.405(b). Parents appealed, claiming ineffective assistance of counsel and insufficiency of the evidence. Appellate court reversed and remanded on the termination of father’s parental rights, declaring TFC § 263.405 unconstitutional for blocking consideration of parent’s ineffective assistance claims. TDFPS appealed appellate court’s ruling.

Held: Modified and remanded to trial court.

Texas Supreme Court Opinion: TEXAS FAMILY CODE § 107.013(a)(1) grants a right to counsel in parental termination cases. The right to counsel is the right to effective counsel. Trial counsel’s failure to preserve error is examined under the procedural due process standard. Matthews v. Eldridge, 424 US 319, 335 (1976). The court weighs 1) private interests; 2) governmental interests and; 3) the risk of erroneous deprivation of parental rights. The court then balances the result against a presumption of constitutionality. Pursuant to In re M.S., 115 S.W.3d 534, this analysis heavily favors allowing review in parental termination cases. Due process consideration prohibit waiver of a complaint due to error by counsel. Since father’s counsel’s failure to file a statement of points fell below an objective standard of reasonableness, and since TEXAS FAMILY CODE § 263.405(i) requires waiver as a result of counsel’s error, TEXAS FAMILY CODE § 263.405(i) is unconstitutional.

Concurrence (Willett, J.): Trial courts should take steps to prevent intentional ineffective assistance of counsel. Possible steps include 1) issuing unambiguous instructions after trial setting out steps to preserve appeal; 2) reminding trial counsel that they still have duties after trial and; 3) punishing attorneys who commit ineffective assistance of counsel.

Dallas family lawyer are aware that the constitutionality of the statement of points requirement in government termination cases has been questioned thoroughly over the past couple of years. The courts of appeals have conflicting determinations on the issue. The Texas Supreme Court has multiple cases pending on the issue as well. JOA does nothing to resolve the issue with any permanency. JOA declares the statement of points statute unconstitutional as applied in this case. Here father’s trial attorney failed to timely file the statement of points and since father actually had a meritorious appellate issue on insufficiency of the evidence to support termination of his rights, the trial attorney was found to be ineffective for the failure, thus causing reversal of the termination. An ineffective assistance of counsel claim has two prongs, not only that the attorney failed in some duty owed, but also that the underlying claim would have been meritorious but for the attorney’s failure.

Texas Lawyer reporter John Council interviews Michelle May O’Neil regarding the Texas Supreme Court’s recent opinion in J.O.A. case.