In an opinion today that will no doubt cause a Pandora’s Box to open in the family courts, the Texas Supreme Court held that “as agreed” possession orders are authorized, valid, and constitutional. Based on the broad and undefined standards of “good cause” and “best interest”, a possession order that gives one party unlimited and complete discretion over the other party’s access to the child is perfectly acceptable. Here’s some quotes from this sweeping opinion:

Read the case here: IN THE INTEREST OF J.J.R.S. AND L.J.R.S., CHILDREN

“While we understand the gravity of imposing a severe restriction or limitation on access to one’s children, we nevertheless conclude that the trial court did not abuse its discretion in vesting the managing conservators with complete discretion over Mother’s access to the children.”  (Opinion at 7.)

“In other words, once a trial court determines that good cause exists for a nonspecific order, the only question left is whether the extent of the restriction or limitation under section 153.193 is in the best interest of the child.” (Opinion at 10.)

“Mother next argues that if a total denial of access serves the children’s best interest, the trial court must terminate the parent-child relationship instead of creating a possessory conservatorship that amounts to an effective denial of access. Again, the trial court’s order was not a denial of access [because she could seek to modify in the future].” (Opinion at 15.)

“Whether a set of broad, enforceable guidelines is preferable to an order granting discretion to the managing conservators requires a case-by-case determination of the child’s best interest.” (Opinion at 15.)

“Thus, while an order must be ‘clear, specific, and unambiguous’ to be enforceable by contempt, it does not follow that every order less than that is invalid.” (Opinion at 18.)

“…[T]he Code does not require – nor have we ever held – that trial courts must issue orders that are always enforceable by contempt.” (Opinion at 18.)

So the questions to the family lawyers out there: Does this effectively reverse Slavin’s requirement of specificity? Or at least put Slavin on the bench warming the seat? And, will this give trial court’s even more discretion to do whatever they want with out any boundaries whatsoever?

The in’s and out’s of an agreement in a family law matter can be complex and hotly contested. This is especially true when a party develops “buyer’s remorse” and wants to undo an agreement he or she did.

There are several statutory provisions that address how to reach agreements in a family law case:

  • Rule 11 Agreements – TRCP 11
  • Mediated Settlement Agreement (MSA) on property issues – TFC 6.602
  • Informal Settlement Agreements (ISA) on property issues – TFC 6.604
  • Agreed Parenting Plan – TFC 153.007
  • Mediated Settlement Agreement (MSA) on kid issues – TFC 153.0071
  • Agreements on child support – TFC 154.124
  • Partition & Exchange – TFC 4.102-105
  • Agreement Incident to Divorce (AID) – TFC 7.006

Michelle O’Neil and Jennifer Satagaj presented a talk on family law agreements via Facebook live — you can watch the video of the presentation here: To Agree or Not to Agree — What is the Difference? (Texas CLE #174124174)

Michelle O’Neil also prepared a presentation summarizing the presentation which you can download here: To Agree or Not to Agree

 

Texas new discovery rules
Texas New Discovery Rules

I feel like everyone should know by now that we have new discovery rules that have changed the game on a lot of things. Example, we don’t *send* a request for disclosure anymore. Instead, there’s a set of mandatory disclosures that are automatic and have deadlines with serious consequences. Much like the federal discovery rules, Texas has this list that you have to just turn over. This includes any documents that support your claims or defenses. And Rule 215 automatic exclusion applies if you don’t. So you don’t want to be that lawyer who gets to a temporary hearing and hasn’t responded to disclosures and gets all of your evidence stricken. Don’t be that guy! Your malpractice insurance carrier thanks you. As one Judge pointed out, the Texas Supreme Court’s COVID rules allows judges wide latitude in softening most of the harsh blows that might happen, but one of these days those COVID orders are going to disappear and things will be back to normal rules with limited discretion.

Anyway, here’s the powerpoint: A Practical Guide to the New Mandatory Discovery

If you’re bar association or group of lawyers wants me to present my approved 1.0 hour CLE talk about the new discovery rules, let me know! I’ve done this presentation to many bar groups all over the state via zoom. I will also come in person if you’re group is local OR if you are paying my travel expenses.

What is a Rule 11 agreement?

Rule 11 of the Texas Rules of Civil Procedure allows parties and their attorneys to enter agreements regarding a case. For example, a Rule 11 agreement allows parties to agree how bills will be paid; who will have possession of the kids for a period of time; or that a discovery response deadline be extended. The requirement of a Rule 11 agreement is that it be between parties or their attorneys, be in writing and filed with the court, or made in open court on the record. Reading an agreement into the record in open court has the same effect as a written agreement because the court reporter’s transcription may be reduced to writing. 

Can a Rule 11 agreement be used to settle an entire case?

Rule 11 agreements can be used to when finalizing an entire case. This is most often done when parties appear in court and read their Rule 11 agreement into the record. The court will then render judgment by officially announcing its decision in open court or by written memorandum filed with the district clerk. The trial court must clearly indicate its intent to render judgment at that time rather than at a time in the future. A judge generally states: “I accept and approve the agreement of the parties, and I render it as an order the court.” If the court only approves the agreement and does not render it an order then the judgment is not finally rendered.

Can you revoke consent to a Rule 11 settlement agreement before judgment is rendered? 

A party has the right to revoke consent to a Rule 11 settlement agreement at any time before the judgment is rendered. In order for a valid consent judgment to exist, the parties must explicitly and unmistakably give consent at the time the trial court renders judgment on that agreement. Consent must exist at the very moment the court undertakes to make the agreement the judgment of the court. To that effect, a party can withdraw consent to the agreement by filing a pleading prior to rendition of judgment that revokes consent. A party can also file a motion opposing entry of judgment. A party can even stand in court before judgment is rendered and state: “I revoke consent to the agreement.”

The Texas Fifth Court of Appeals stated in 2003 that “[a] court cannot render a valid agreed judgment when consent of one of the parties is wanting.” Hawkins v. Howard, 97 S.W.3d 676, 679 (Tex. App.—Dallas 2003, no pet.). The Texas Supreme Court previously stated: “When a trial court has knowledge that one of the parties to a suit does not consent to a judgment, the trial court should refuse to sanction the agreement by making it the judgment of the court.” See Quintero v. Jim Walter Homes, 654 S.W.2d 442, 444 (Tex. 1983)). The lesson for attorneys and parties is that you need to seek rendition of judgment based on the Rule 11 agreement as soon as possible. This limits the possibility that the settlement agreement can later be revoked.

 

 

Today is April 1st which it means today is the deadline for the non-primary parent/possessory conservator to timely designate your period(s) of extended summer possession. Summer 2021 is the time for everyone to make up the vacations you missed last summer! You want to send your formal designations today so you and your kids can enjoy a trip or staycation.

If you are the non-primary parent/possessory conservator then you must submit, in writing, the dates that you wish to have extended summer possession with the child/children by 11:59 pm tonight. Failure to submit your desired dates on or before April 1st may result in you having no choice regarding your extended summer possession this year.  Most orders state that if the non-primary parent/possessory conservator fails to designate his or her extended summer possession on or before April 1 then the extended summer possession for that year shall begin on July 1 at 6:00 p.m. and end on July 31 at 6:00 p.m.

Key Points to Remember when Selecting Dates for Summer Possession:

  • If you are the mother, do not select dates that interfere with Father’s Day Weekend, which is the weekend of June 18-20, 2021;
  • Please remember that all summer possession must be completed within a specified time period. The time period for exercising summer possession begins on the day after the child’s school is dismissed for the summer vacation and ends no later than seven days before school resumes at the end of the summer vacation. Be sure to look at your child’s/children’s school calendar to ensure that you comply with this requirement. The school calendar applies whether your child is attending school virtually or attending school in person.
  • If you reside within 100 miles or less from the primary residence of the child, then you can select 30 days for extended summer possession. You do not have to select 30 days in a row. You can break up the days into no more than two separate periods of at least seven consecutive days each.
  • If you reside over 100 miles apart from the primary residence of the child, then you can select 42 days for extended summer possession. You do not have to select 42 days in a row. You can break up the days into no more than two separate periods of at least seven consecutive days each.
  • Remember that you must always look at your specific order for guidance. The above points are the general terms under the Texas Family Code.

How Do I Give Notice?

Again, check your order for the form of notice which is usually in the General Terms and Conditions section of your order. Traditionally, written notice includes electronic mail, snail mail, and sometimes text message. If you’re ordered to communicate only through Our Family Wizard or another parenting platform like App Close, be sure to give notice via that platform. A good rule of thumb when designating your extended summer possession is send the notice in as many ways as you can so there is never a question as to your timely designation.

What Else Do I Need to Know?

The non-primary parent/possessory conservator still gets his/her 1st, 3rd, and 5th weekends of the summer months, as well as 30 days of extended summer possession. The primary parent in turn gets to pick one of the 1st, 3rd, and 5th weekends, which would have been the non-primary parent’s weekend, to have possession of the children as well as one weekend during the non-primary parent’s 30 days of extended summer possession if the non-primary parent is exercising all 30 days in one block.

A question that is frequently asked is “can I use a weekend of summer possession in addition to my extended summer possession to make my time with the children 32 days?”  The answer is yes you can as long as your order doesn’t have “no stacking” language. In other words, if your order says you cannot “stack” regular weekends on top of extended summer time, then you have to include your regular 1st, 3rd, and 5th weekends in your selected summer time. If you don’t have “no stacking” language, however, you can put your regular weekends before or after your selected extended summer dates.

Last week I gave a presentation on Facebook live: Attorney’s Fees After Rohrmoos. You can watch the live video here: Attorney’s Fees After Rohrmoos video. The talk is credited by the State Bar of Texas for 1.00 CLE credit. I give the number at the end of the presentation so after you watch it, you’ll have that number to self-report your credit. Here’s a link to the Rohrmoos case.

Tips after Rohrmoos about attorney’s fees:

  • Keep contemporaneous billing records in all cases, including hybrid and contingent fee cases;
  • Try to stipulate to the fee award prior to trial;
  • Enter your fee agreement and billing records into evidence at trial;
  • Be careful about redacting your entries in the fee agreement;
  • Introduce evidence to explain why all entries included were reasonable and necessary;
  • Consider getting an outside expert to support or challenge the fee request.

During the presentation, I promised to provide a couple of things I’ve drafted and here they are:

Summary of attorney’s fee testimony

Brief on attorney’s fees (property case)

Brief on attorney’s fees (SAPCR)

I previously wrote about the Rohrmoos case in this blog post: Proving up attorneys fees

In 2017, the Dallas Court of Appeals quietly and with zero fanfare released the In re Sting Soccer opinion. It is an unpublished memorandum opinion, but it chocks a huge, unexpected punch to discovery-as-we-knew-it. Basically, it makes a lot of our standard objections illegal, with the effect of broadening the scope of discovery immeasurably. Note that no other COA has approved or disapproved of it and there’s been no weighing-in from SCOTX either. Even so, at least in the Dallas area — but probably state-wide — we should pay close attention to this case.

Here’s the video from my live Facebook CLE presentation on the topic — HERE.

Here’s the download white paper summary of In re Sting Soccer — discovery responding and objecting white paper.

Link to In re Sting Soccer case — HERE

With the start of the new year comes new discovery rules from the Supreme Court of Texas. The significant changes to the Texas Rules of Civil Procedure apply to cases filed after January 1, 2021.

If a new client’s case is filed after January 1, 2021, there are certain documents and information that you are now required to provide to the other side no later than 30 days after filing an answer or making a general appearance. Previously, you were not required to provide the below information until formally requested by the opposing party or as required by local standing order. Now, you must provide the information or risk not being allowed to fully present the case at a hearing or trial.

Persons with Knowledge 

A person with knowledge is someone who has knowledge of relevant facts about the case. Obvious people are the client’s family members and friends. Other people that have knowledge about the case might include teachers or coaches of the client’s children; doctors; counselors; financial advisors; co-workers; or neighbors of the client. Any person who could possibly be a witness in the case or provide testimony must be listed as a person with knowledge. While there is an opportunity to update this list throughout the case, the initial “Persons with Knowledge” list must be provided or you risk witnesses being excluded from testifying.

Financial Documents 

If the case is a divorce (with or without children), there are certain client financial documents that must be provided. The time period for the following documents is the past two years. If the client has been married less than two years, the required time period is since the date of marriage:

    • All bank statements, including any accounts on deposit with any financial institution, savings and loan institution, credit union, or brokerage.
    • All statements for any pension plan, retirement plan, 401(k), SEP/IRA, profit-sharing plan, or other employee benefits account.
    • Documents including declaration/benefits page and premium notices for all life, casualty, auto insurance, umbrella, liability, and health insurance.
    • Tax returns for the past two years including IRS Forms W-2, 1099’s, and Schedule K-1’s.

Property Documents

The following property documents are required if the case is a divorce (with or without children). As with the financial documents above, the time period for the property documents is the past two years unless the marriage is less than two years. If the client does not have the documents in his/her possession, the client should contact the mortgage lender, title company, and/or County Clerk’s office in order to take every reasonable effort to obtain documents:

    • Documents relating to real estate owned or leased by the client and client’s spouse, including property owned prior to marriage and property that was inherited.
    • Closing documents.
    • Deeds.
    • Mortgage statements.

Cases with Children

If a child is involved in the case, whether a divorce, suit affecting the parent-child relationship, or child support, the client must provide the two most recent paystubs. The following documents for the past two years are also required:

    • All policies, statements, and the summary of benefits for medical, health, and dental insurance available for a child or client’s spouse.
    • Tax returns for the past two years including IRS Forms W-2, 1099’s and Schedule K-1’s.

While there are some exceptions for cases such as protective order cases, generally the disclosure of the above documents is not optional. For a more complete summary of the new discovery rules, you can read Michelle May O’Neil’s Summary of New Discovery Rules 2021 or view her video post update.

(This post has been updated to reflect the current and final information about the new 2021 discovery rules.)

The Texas Supreme Court has released new discovery rules that will be effective January 1, 2021. While these rules are still under review and subject to change, they are so significant that they warrant review now even if they get tweaked over the next couple of weeks. Here is a FREE download summary of the final version of the new rules that I have prepared: Final summary new discovery rules 2021.

I also prepared a powerpoint presentation that I prepared summarizing the new rules: A Practical Guide to the New Mandatory Discovery

Read the final version of the rules that are effective 1/1/2021 here. (Read the Texas Supreme Court’s first draft proposed rules here.)

Watch Michelle O’Neil’s 1 hour presentation on the first draft of the new rules (recorded live) here. Her video update on the final version of the rules is here. [WATCH BOTH VIDEOS TOGETHER TO HAVE THE FULL PICTURE.]