Dallas divorce attorney, Michelle May O’Neil, prevailed in the El Paso Court of Appeals opinion issued on February 24, 2010, in Cause No. 08-07-00228-CV, In the Interest of P.L.H., S.L.H., and C.H.H., Minor Children. The Court overruled all seven of Appellee’s issues on appeal, upholding the judgment of the trial court, including the entry of death penalty sanctions against Mother, denial of Mother’s request for a continuance, judgment against Mother for $60,000 in attorney’s fees incurred by Father, and a credit in Father’s favor for over $32,000 for prior overpayments of child support.
The parties were originally divorced in Oklahoma in 2000, via a Final Decree of Divorce that improperly omitted the requisite finding for child support under Oklahoma law. Unaware of this deficiency, Father paid child support from 1999 through 2004 in the amount of $981.46 per month. In 2004, the error was corrected by the Oklahoma Court’s entry of a nunc pro tunc Final Decree of Divorce, ordering Father to pay $481.20 per month, instead of $981.46. In 2005, Father filed a Petition to Modify in Dallas, which by that time had become the county of the children’s residence. Mother filed her own counter petition in the Dallas court as well, seeking to drastically reduce Father’s possession time and to increase child support. Mother then requested the Oklahoma Court to decline jurisdiction in favor of the Dallas court as to all issues regarding child support and custody.
A year after the Oklahoma court declined jurisdiction over all child support and custody issues, Mother went back to Oklahoma and obtained entry of another nunc pro tunc order, this time the changes had the effect of increasing Father’s child support obligation. At trial, Mother attempted to argue the validity of this second nunc pro tunc order in the Dallas court. But the trial judge found that, since the correction involved a “judicial” rather than “clerical”, and since the Dallas court had already assumed jurisdiction of all issues involving child support and custody at the time the second nunc pro tunc was entered, the Oklahoma court lacked jurisdiction to make such substantive changes. The second nunc pro tunc was, therefore, void. The Court of Appeals affirmed this ruling on appeal.
The jurisdictional issue regarding the second nunc pro tunc was the most complex of the seven issues presented. The other six issues on appeal concerned mainly Mother’s repeated failure to follow the orders of the trial court and the Rules of Civil Procedure.
Here, the appellate court upheld the trial court’s imposition of death penalty sanctions against Mother as the result of her failure to comply with the pretrial scheduling order were proper. Based on Mother’s history of discovery abuse throughout the course of the litigation, and her failure to comply with the trial court’s orders, the El Paso Court of Appeals found the trial court’s decision to exclude Mother’s trial exhibits was not excessive. The Court’s opinion further states, “[t]he record demonstrates that the trial court considered, and imposed, lesser sanctions when earlier discovery abuses arose, without success. Accordingly, the court’s decision to impose a Rule 215.2(b) sanction was not an abuse of discretion.”
The appellate court also upheld the trial court’s denial of Mother’s requested continuance of trial. Mother’s Motion for Continuance was not verified or supported by an affidavit, as required by the Texas Rules of Civil Procedure. Mother acknowledge that although her Motion for Continuance was procedurally defective, the circumstances of her case, specifically that she was representing herself pro se, made a continuance appropriate regardless of procedure. The appellate court disagreed.
Mother also attempted to argue on appeal that the child support credit Father received was a debt previously discharged by Mother in bankruptcy. Not withstanding the substantive argument against this issue, the appellate court found that Mother failed to properly plead, and, therefore, waived, the affirmative defense of discharge in bankruptcy per Texas Rule of Civil Procedure 94. Therefore, the appellate court did not even reach the merits of Mother’s argument on this issue, overruling the issue on Mother’s pure procedural deficiencies.
Although the facts of this case are somewhat complex, the principles attorneys, as well as their clients, can take away from it are simple. Review orders carefully either before or as soon as you possibly can after entry, especially divorce decrees and child support orders, because you might not have jurisdiction to correct substantive mistakes later on. Be careful what you ask for, like Mother’s request here that the Oklahoma court decline jurisdiction, because you just might get it. Also, play by the rules, the rules of civil procedure and the orders of the court, failing to do so could result in stiff penalties, like the death penalty sanctions entered here. Along those same lines, while legal representation may seem expensive to pro se litigants, the price you pay in the long run if you choose to represent yourself without knowing the rules could be much greater.
Congratulations to Michelle May O'Neil on another successful appeal for her client!
