Whenever a trial court, after a nonjury trial, enters a possession schedule which deviates from the standard schedule, a party may request the trial court to enter special findings about the reasons for deviation from the standard order. However, those findngs must be requested within the time depcified by Texas Family Code sec 153.258, which is 10 days from the date of the hearing. If such findings are not requested within that time frame, the party waives the right to seek such findings on the special possession schedule. The effect is that the party will have a very difficult time challenging the discretion of the corut in entering the non-standard possession schedule if no findings exist.  On appeal, the trial court’s decision will be upheld on any ground available from the evidence, not just the ones the trial court would have put in the findings.

The Tyler Court of Appeals recently decided a case on this issue.  There, the trial court appointed mother and father as JMC and stated that father was to have possession of the child 14 days out of every 28. Mother filed for regular findings but did not timely request the non-standard possession findings under sec 153.258. Mother could not complain about the trial court’s failure to make those findings and waived her complaint.

Practice note:  It is very important that family lawyers be aware of this rule! If you try a case to judgment and one party is awarded a possession schedule that deviates from the standard schedule, you must file the request for findings 10 days after the hearing.  The rule is silent as to how to handle a situation where the trial court takes the case under advisement and issues a ruling more than 10 days following the hearing, but I would assume that the 10-days would start from receipt of the ruling, not the hearing. Please, trial lawyers, do not think that it is someone else’s problem.  You could very easily commit malpractice if the deadline to request these findings expires on your watch!

Pickens v. Pickens, 2014 WL _____________, 12-13-00235-CV (Tex. App.—Tyler 2014, no pet. h.) (02-28-14)

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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.