Appeal

What is intentional underemployment? Texas Child Support

January 30, 2021 | by Robert Guest

What is intentional underemployment?

Bob has a child with Mary. Bob makes $10,00,000 a year as a professional baseball player. Mary takes Bob to court for child support. Bob is in his baseball prime and could still play if he wanted. But Bob decides to retire from baseball and take up a job as a Tik Tok dancer that pays $10,000 a year.

Bob believes that Texas child support calculations are based on income. Bob is mad about having to pay child support and wants to reduce the amount he pays to Mary. Bob thinks he would pay much less in child support on $10,000 a year vs $10,000,000.

Living Together During The Divorce and Family Violence

April 26, 2020 | by Guest and Gray Law Firm

It is not uncommon for married couples to live together while a divorce is pending. One of the issues we often have to address for our clients is who is going to live in the marital residence. This can be agreed to, and often one party will agree to move out. However, if there is not an agreement then a judge may have to decide who lives in the marital home during a temporary orders hearing.

Having a divorcing couple living together can lead to confrontation, and it can increase the risk of domestic violence. If you believe that it is dangerous to live with your spouse let your lawyer know immediately. Recently, the Dallas Court of Appeals hearing a case involving an assault between a couple going through a divorce, and still living together.

In that case, Johnelle Hall vs the State of Texas, No 05-18-00424-CR, the couple (Johnelle and Clifton) couldn’t agree on when Clifton (Husband) should move out, or if he should pay child support. The issue was put to a judge at the temporary orders hearing. The judge ruled that Clifton did have to move out, and pay child support. But the judge also gave Clifton two extra weeks to move out. Neither party was happy with this ruling. In family cases, it is not uncommon for both parties to have issues with a judge’s ruling.

Can I get parts of my divorce decree thrown out while keeping the parts I like?

December 30, 2016 | by Robert Guest

Can I appeal my divorce while still accepting benefits from the parts of the judgment that work in my favor?

As with most questions asked about the law, the answer to whether you can appeal a part of your divorce while accepting benefits from the parts of the divorce you do like is, it depends. More accurately, the answer is, probably not. This is because of a legal concept called estoppel.

What is estoppel?

Can I get out of a Rule 11 agreement I entered by mistake?

March 8, 2015 | by Guest and Gray Law Firm

Rule 11 agreements are terms that a party can agree on and have the same affect as a court order. So long as the agreement satisfies the requirements of Texas Civil Procedure 11, these agreements are enforceable.

Can I get out of a Rule 11 agreement that I entered into by mistake?

There are certain situations where these agreements can be considered void; one way to make the agreement void is by showing the agreement was made by mistake. In the Dallas 5^th District Court of Appeals case, In the Interest of A.B. & D.Y, a mother wanted to void a Rule 11 agreement that she had made because she claimed the agreement was made by mistake. In this case, the court explained, “mutual mistake is an affirmative defense, that states when the parties to an agreement have contracted under a misconception or ignorance of a material fact, the agreement will be avoided.” When someone wants to void a Rule 11 agreement based on a mistake, it is up to that person to prove to the court that the agreement should be voided.

Can I appeal the property division from my divorce trial?

February 23, 2015 | by Guest and Gray Law Firm

What if I don’t like how the court divided the property in my divorce? Can I appeal it?

You can try and appeal the courts division of your property in a divorce settlement but the appeals court will have a certain standard that they will use when reviewing the trial court’s decision. The appellate court is going to review the court’s decision by using an abuse of discretion standard. What this means is that the appellate court will review the case and make sure there was sufficient evidence for the trial court to base its division of property on. Then, based on that evidence, the appellate court will decide if the trial court’s division was reasonable. If the trial court can show that its decision is based on meaningful and firm evidence, then the appellate court will not overrule the trial court’s division of property.

In my divorce, the court did not divide the property equally, is this fair?

You need a lawyer for your divorce, and for your divorce appeal

February 18, 2015 | by Guest and Gray Law Firm

When someone decides to become a lawyer he or she must go through a rigorous process before becoming certified to practice law. It is required that he or she complete law school, which can take anywhere from to three or four years, and pass an extensive exam. During the course of study, prospective lawyers will learn civil procedure, criminal procedure, evidence, legal writing, and various other courses that will prepare them to sufficiently represent a client in the courtroom. Years of preparation and thousands of hours are spent for a person to prepare to be able to adequately represent another person. With all the criteria that must be met for a lawyer to represent another person in court, it would be unreasonable to expect people, without adequate education, to be successful in representing themselves in a courtroom. But, some people try to represent themselves in the courtroom with no legal assistance. This is what the legal field refers to as “pro se”, the Latin phrase meaning “for oneself”. Unfortunately, in some cases, people do so to no avail and Mr. Lares, in his appeal to the Fourth Court of Appeals Court, Lares v. Flores, found out just how difficult the process can be.

Why did Lares’ attempt to represent himself fail?

When a decision is made on a case a person can attempt to appeal the decision by claiming the original court made an error. When making an appeal there are certain rules of procedure that must be sufficiently followed for the court to consider your appeal. Lares had several issues that he wanted to appeal from the trial court. He claimed the trial court erred by failing to provide him notice of the hearing, denying his motion for continuance, refusing to hold his ex wife, Flores, in contempt, and believing his ex wife’s testimony over his because he was incarcerated at the time. Lares needed to prepare an adequate brief of these issues that followed the Texas Rules of Appellate Procedure. Lawyers are trained to know these rules and expected to follow them when they are submitting a brief to the court. If the brief is not adequate, the court will wave the complaints made and the appeal will not be considered.

Can a parent lose custody of their children if they use meth?

February 17, 2015 | by Guest and Gray Law Firm

Usually, it is in the best interest of a child to live with their parent. This is not always the case though, and there are times that a court may need to terminate the rights of a parent. The court will terminate a parent-child relationship if it finds it to be in the best interest of the child and if the parent committed one or more of the statutory acts set out in Texas Family Code 161.001. Abuse and neglect will not always be the only reasons that a parent’s rights have been terminated. Instead, each case that is brought before the court will be determined on a fact based analysis considered by several factors.

How does the court determine the best interest of the child?

In 1976 the court came up with several factors that determine the best interest of the child in Holley v. Adams, and are now termed the Holley factors. These factors include 1) the desires of the child; 2) the emotional and physical needs of the child now and in the future; 3) the emotional and physical danger to the child now and in the future; 4) the parental abilities of the person seeking custody; 5) the programs available to assist the person seeking custody in promoting the best interest of the child; 6) plans for the child by the person seeking custody; 7) the stability of the home or proposed placement; 8) the acts or omissions of the parent that may indicate the parent-child relationship is not a proper one; and 9) any excuse for the acts or omissions of the parent. Not all of the factors listed above will apply to each case brought before the court. The court will use the factors on a case-by-case basis to decide if termination of the parent’s rights is in the child’s best interest.

Modification of Custody in Less Than One Year: How Important is the Affidavit?

May 13, 2014 | by Guest and Gray Law Firm

You just finalized your divorce or custody matter, however it seems like every time you turn around you think that your child should live with you instead of the other parent primarily of the time. Even though it is has not even been a year yet since your final orders were rendered, it just seems as though something is constantly coming up and you are genuinely concerned. The other parent may be endangering the child’s physical welfare or emotional development such as engaging in criminal activity, drug usage, physical/mental/sexual abuse, or overall endangerment of the child. You want to change the custody orders now but you have been told that there are certain roadblocks in requesting the modification this soon. What should you expect?

Less than One Year Requirements

If you are filing your petition to change the parent who has the exclusive right to designate the child’s residence in less than one year, there are specific requirements that you must follow. In fact, you must qualify within these statutory parameters to even file your case. The most important and crucial requirement is the affidavit that must be attached to your petition. In fact, Texas Family Code Section 156.102 mandates that an affidavit must be attached to your pleadings and “(b) must contain, along with supporting facts, at least one of the following allegations: (1) that the child’s present environment may endanger the child’s physical health or significantly impair the child’s emotional development; (2) that the person who has the exclusive right to designate the primary residence of the child is the person seeking or consenting to the modification and the modification is in the best interest of the child; or (3) that the person who has the exclusive right to designate the primary residence of the child has voluntarily relinquished the primary care and possession of the child for at least 6 months and the modification is in the best interest of the child.” Frequently, we see the first requirement being the grounds on which someone files a modification. Allegations are made that something bad has happened in the other parent’s care and this is why that parent should no longer have possession of the child. But, the key is that the allegations must be made in the affidavit. Many people get hung up on this requirement and many times affidavits fall short on their face.

Default Judgments in Divorce—What it Takes to Get a New Trial Granted

April 29, 2014 | by Guest and Gray Law Firm

You have been served with a petition for divorce and it states you have to file an answer by 10:00 a.m. on the Monday next after the expiration of 20 days. However, you have been working things out with your soon-to-be-ex spouse and you guys have agreed upon everything. Your spouse tells you that the service part is just part of the legal process and you do not have to do anything because you have already signed the agreed decree. However, once everything is said and done the district clerk’s office mails you a copy of the decree and it is not the one you signed. In fact, it contains terms that are the complete opposite as to what you agreed. You are shocked and you have no idea what to do; according to the final decree mailed to you, your ex-spouse is taking the children, the home, and the car.

You contact an attorney and find out that your ex-spouse actually waited for your answer period to expire and then went before the judge and asked for a “default” divorce on the basis of you not answering or making an appearance. The judge, not knowing the background of the case and relying upon the ex-spouse’s allegations, granted the default divorce and now you must work to get that reversed.

The good news is you do have a form of recourse. You can file a motion to set aside the default judgment and a motion for new trial. In order to be successful on this type of motion, it is important that you know the grounds for doing so. Luckily, several appellate courts have discussed this test, also known as the Craddock elements. It was recently discussed again by the Texarkana 6^th District Court of Appeals in In the Matter of the Marriage of Lucas Woods and Jessica Woods and In the Interest of L.K.L.W. and S.B.L.W., Children. This Court held that to analyze whether a motion for new trial should be granted and to set aside a default judgment, the trial courts must look at the following factors: “(1) the failure of the defendant to answer before judgment was not intentional, or the result of conscious indifference on his part, but was due to a mistake or accident; (2) the motion for a new trial sets up a meritorious defense; and (3) granting the motion will occasion no delay or otherwise work an injury to the plaintiff.”

The Judge Did Not Divide the Assets Fairly in My Divorce, Can I Appeal?

April 23, 2014 | by Guest and Gray Law Firm

You have just finished a long bench trial in your divorce and you do not feel that the trial court was correct in its division of your assets and liabilities. In fact, you feel that the judge was completely wrong and you got the short end of the stick. So, you wonder what you can do about it. You absolutely can appeal, but you have a short window frame in order to do so and it is imperative you take certain steps in appealing.

The 7^th District Court of Appeals in Amarillo makes this fact abundantly clear in Kenneth Dale Rodgers, Appellant vs. Mary Elaine Rodgers, Appellee in determining whether or not (a) “the trial court abused its discretion in the division of the property” which (b) “materially affected a just and right division of the marital estate.” In that case, the husband was very unhappy with the property division and he appealed. However, the husband failed to request findings of fact and conclusions of law from the trial court within the required amount of time. Therefore, the appellate court had no idea what the basis of the trial court’s ruling was and was forced to go along with it. This is because, as the Court of Appeals held, you must request findings of fact and conclusions of law from the trial court and the trial court must then file those within a certain period of time. This allows the Court of Appeals to determine why the trial court held what it held. The record sometimes helps, but findings of fact and conclusions of law are obviously more solid and preferred by the appellate courts.

When you have a bench trial (trial before judge, not jury), Texas Rules of Civil Procedure Rules 296 and 297 mandate that you must file your request for findings of fact and conclusions of law from the trial court “within twenty days after the judgment is signed” and then the trial court must “file its findings of fact and conclusions of law within twenty days after a timely request has been made.” If you fail to do this, then “the trial court is presumed to have made all findings of fact necessary to support its judgment, and it must be affirmed on any legal theory that is supported by the evidence.” Rodgers v. Rodgers.