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.

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Photo of Michelle O'Neil Michelle O'Neil

Michelle May O’Neil has 27 years’ experience representing small business owners, professionals, and individuals in litigation related to family law matters such as divorce, child custody, and complex property division. Described by one lawyer as “a lethal combination of sweet-and-salty”, Ms. O’Neil exudes…

Michelle May O’Neil has 27 years’ experience representing small business owners, professionals, and individuals in litigation related to family law matters such as divorce, child custody, and complex property division. Described by one lawyer as “a lethal combination of sweet-and-salty”, Ms. O’Neil exudes genuine compassion for her client’s difficulties, yet she can be relentless when in pursuit of a client’s goals. One judge said of Ms. O’Neil, “She cannot be out-gunned, out-briefed, or out-lawyered!”

Family Law Specialist

Ms. O’Neil became a board-certified family law specialist by the Texas Board of Legal Specialization in 1997 and has maintained her certification since that time. While representing clients in litigation before the trial court is an important part of her practice, Ms. O’Neil also handles appellate matters in the trial court, courts of appeals and Texas Supreme Court. Lawyers frequently consult with Ms. O’Neil on their litigation cases about specialized legal issues requiring particularized attention both at the trial court and appellate levels. This gives her a unique perspective and depth of perception that benefits both her litigation and appellate clients.

Top Lawyers in Texas and America

Ms. O’Neil has been named to the list of Texas SuperLawyers for many years, 2011-2018, a peer-voted honor given to only about 5% of the lawyers in the state of Texas. In 2014-2018, Ms. O’Neil received the special honor of being named by Texas SuperLawyers as one of the Top 50 Women Lawyers in Texas, Top 100 Lawyers in Texas, and Top 100 Lawyers in DFW. She was named one of the Best Lawyers in America for 2016 and received an “A-V” peer review rating by Martindale-Hubbell Legal Directories for the highest quality legal ability and ethical standards.

Author and Speaker

A noted author, Ms. O’Neil released her second book Basics of Texas Divorce Law in November 2010, with a second edition released in 2013, and a third edition expected in 2015.  Her first book, All About Texas Law and Kids, was published in September 2009 by Texas Lawyer Press. In 2012, Ms. O’Neil co-authored the booklets What You Need To Know About Common Law Marriage In Texas and Social Study Evaluations.  The State Bar of Texas and other providers of continuing education for attorneys frequently enlist Ms. O’Neil to provide instruction to attorneys on topics of her expertise in the family law arena.