Enforcements actions can be a source of confusion for many. While enforcement actions actually allow for many different remedies, many view them in the family law context as being simply synonymous with contempt of court.

Enforcement is the act of compelling observance or compliance with a law, rule or obligation. An enforcement case in family law compels compliance with a court order.

So if enforcement of a judgment is the right – what are the remedies for that right? Remember that at law a right goes with a remedy (or more than one remedy). A legal remedy is the MEANS by which a court of law enforces a right. “For every right there is a remedy. Where there is no remedy, there is no right.” (William Blackstone)

Generally, remedies are in two broad categories – judicial remedies or those that a judge can award — versus extrajudicial remedies or self-help that keeps people out of the court system.

Judicial remedies generally fall in 3 categories – monetary damages, declaratory relief, and equitable remedies like injunctions or specific performance or even contempt of court.

In this continuing legal education presentation, I discuss the different remedies for enforcement beyond contempt. I also deep dive into contempt actions — how to prosecute them, how to defend them and how to appeal them.

This presentation is approved for 1.0 hour of CLE credit by the State Bar of Texas.

Watch here: https://fb.watch/9rW1HFWQLW/

Here’s my written notes from the presentation: Enforcement versus Contempt

When are you entitled to a jury trial in family law cases?

Only 11 states allow jury trials for divorces. Texas is the only state that allows a jury trial for custody matters. The Texas Constitution guarantees your right to jury trial in civil cases.

The right of trial by jury shall remain inviolate. The Legislature shall pass such laws as may be needed to regulate the same, and to maintain its purity and efficiency.”

TEX. CONST. ART 1, § 15.

The Texas Constitution further states:

In the trial of all causes in the District Courts, the plaintiff or defendant shall, upon application made in open court, have the right of trial by jury; but no jury shall be empaneled in any civil case unless demanded by a party to the case, and a jury fee be paid by the party demanding a jury, for such sum, and with such exceptions as may be prescribed by the Legislature.”

TEX. CONST. ART 5, § 10.

What can a jury decide in a divorce?

A jury can give binding verdicts on limited issues a divorce. A jury can determine the grounds for divorce. Texas has seven grounds for divorce which are found in chapter 6 of the Texas Family Code. The grounds are divided between no-fault grounds and fault grounds. The three no-fault grounds are: 1) Insupportability; 2) Living apart for three years or longer; and 3) Confinement to a mental hospital where one spouse has been confined for at least three years and it is unlikely that, if adjustment occurs, a relapse is probable. The four fault grounds are: 1) Cruelty; 2) Adultery; 3) Abandonment; and 4) Conviction of a felony.

A jury can also determine the character of property. Is the property separate property? Is the property community property? Is the property mixed character such that it is part separate property and part community property? The jury can determine the value of the property with the jury question being similar to: “State in dollars the value of Property X.” A reimbursement claim by one marital estate to another marital estate, as well as whether an offset against such reimbursement claim exists are also a jury questions.

A jury is prohibited from giving a binding verdict on the following matters: how the property will be divided between the parties; whether a premarital agreement is unconscionable; attorney’s fees to be awarded; and costs of court to be awarded.

What can a jury decide in a suit affecting the parent-child relationship?

Child issues come before the court when married parents get divorced and the Suit Affecting the Parent-Child Relationship (SAPCR) is combined with the divorce. Child issues also come before the court when unmarried parents file an original SAPCR or when unmarried or formerly married parents file a petition to modify the parent-child relationship.

A jury can decide the following child related issues:

  1. Whether a party will be appointed a sole managing conservator and the identification of which parent will be appointed the sole managing conservator;
  2. Whether the parties will be appointed joint managing conservators;
  3. Whether a possessory conservator will be appointed and the identification of that possessory conservator;
  4. Which joint managing conservator will have the exclusive right to designate the primary residence of the child;
  5. Whether there will be a geographic restriction on the primary residence of the child; and
  6. If there is a geographic restriction, determination of what that geographic restriction will be (i.e., State of Texas; Dallas County; Collin County and counties contiguous to Collin County).

A jury cannot give any opinion on issues regarding parentage, child support, the terms or conditions of possession or access, or what rights and duties the conservators will have (not including who has the exclusive right to determine the child’s primary residence).

Many factors go into deciding whether to ask for a jury trial. While Texas gives litigants the opportunity to have the case decided by a jury, knowing what a jury can actually decide is a helpful starting point when analyzing your case strategy.

 

Our October monthly free lawyer’s continuing education presentation focused on new cases and legislation affecting Texas family law.

Here’s a link to watch the video on Facebook: https://fb.watch/8SJMhZFiJF/

Here’s the presentation with all the details: What’s New in Texas Family Law This Fall?

Here’s a link to Elisa Reiter’s excellent articles about the new legislation (read them together because the second article updates the first one):

TexasLawyerRevisionstotheTexasFamilyCodethatEveryAttorneyShouldKnow

art-texas-lawyer-governor-abbott-vetoes-bill-requiring-standardization-of-protective-order-applications-7-20-21

 

 

I heard from several judges that there are many lawyers across the state that aren’t clued into the new discovery rules and are messing things up. They asked me to redo my presentation so there would be one link and one place to go to learn about them. So, I did!

Here’s the link to the video on FB Live: The New Discovery Rules Six Months Later.

Here’s the pdf download of the slides from the video: A Practical Guide to the New Mandatory Discovery

Here’s the Motion for Protection that we filed when someone sent us an RFD on a new rules case. [will upload soon — check back]

Here’s the Notice of Exemption that we filed on an “other action involving domestic violence” exempting from the Initial Disclosure rule. Notice of Exemption

Here’s link to the new 2021 discovery rules since they aren’t in the books yet.

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.