Family law

Violations of Temporary Orders, What Are Your Options?

August 14, 2014 | by Guest and Gray Law Firm

If you have a current pending divorce or suit affecting the parent-child relationship then you most likely have temporary orders in place. If not, in most family law cases you do want to ensure that you have temporary orders granted by the Court so that you know what you should and should not be doing while the case is pending. That is, temporary orders set the status quo of your case and instruct the parties as to their rights and duties with respect to their children, property, debts, and other issues in the case. For instance, you may have been granted exclusive use of the marital residence, your vehicle, and primary possession of the children. These are all essential things to establish in a case without delay, unless you and the other party are working amicably towards a final resolution.

Enforcement of Violated Temporary Orders

Once the Court has granted the temporary orders, they are enforceable against both parties. If any portion of those orders is violated by either party, there are options. The other party may have been ordered to pay child support and they may not be doing that and you may need that support in order to survive. Or, the other party may have been ordered to participate in counseling or drug testing and they not be doing so. It might even be that the other party will not stay away from the property or give you the car you were awarded temporarily. All of these issues are concerning and when you are not getting the results from the provisions the Court put into place it can be very frustrating. But, you do have recourse. Typically, you can file an enforcement action of temporary orders asking that the wrong be corrected and asking for attorney’s fees for having to go back to Court and ask the judge to tell someone to do what they were already ordered to do. If it is a failure to pay child support, the violating party also faces possible jail time. You will have to be able to prove that the temporary orders were put in place, prove the violations, and then the burden becomes the other party’s to state why they did all of those things. Depending upon those reasons, the Court may be a little lenient upon the person. It is always a hope that the Court would at least grant your attorney’s fees for your attorney’s time to draft the enforcement and have the hearing.

Can I Have My Marriage Annulled Because of Fraud?

August 7, 2014 | by Guest and Gray Law Firm

What is the law in Texas on marriage fraud?

The first step in determining whether or not you qualify for an annulment based upon fraud is to ensure that you fit within the parameters of the law on this issue. Specifically, Texas Family Code Section 6.107 states that, “a trial court may grant an annulment of marriage to a party to the marriage if (1) the other party used fraud, duress, or force to induce the petitioner to enter into the marriage; and (2) the petitioner has not voluntarily cohabitated with the other party since learning of the fraud or being released from the duress or force.” Therefore, if someone used fraud to get you to marry them and you stopped living with them after you learned of the fraud, you qualify so far. The next question becomes, what constitutes as fraud? Many Texas Appellate Courts have addressed this issue and have come up with a standard as follows, “Fraudulent inducement is established by proving that a false material representation was made that (1) was known to be false when it was made; (2) was intended to be acted upon; (3) was relied upon; and (4) caused injury.” See Desta v. Anyaoha, 371 S.W.3d 596, 600 (Tex. App.—Dallas 2012, no pet.); Zhang v. Zhang, not reported. Therefore, if your spouse says something to you prior to marriage that is false and you depend upon that false statement to marry them and then you find out and it has caused you injury in any way you might have a strong legal argument for an annulment.

What is an example?

Can I Fix an Error in a Final Decree or Order?

July 15, 2014 | by Guest and Gray Law Firm

If you have a final decree or final order in a family law case with an obvious mistake from what the trial court ordered or the parties agreed, you can get it fixed through what is called a Nunc Pro Tunc. The key is that this mistake has to be a clerical error—did it mix up the judgment of the court. It cannot be one that requires “judicial reasoning and determination” or in other words any thought process on the judge’s part. If it is in fact a clerical error, then under Texas Rules of Civil Procedure, the trial court can fix this clerical error at any time.

What is an Example of a Clerical Error?

In Bernardo Reyes v. Olga Reyes, the Amarillo Seventh District Court of Appeals had to address this issue. In that case, the trial court made an initial order on the record divorcing the parties and making appropriate orders regarding conservatorship and child support. Most importantly, the trial court ordered that mother be the parent who has the exclusive right to designate the primary residence of the children and father to pay child support. The trial court rendered the orders on the record but the final decree was never actually signed by the court until three years later. The problem was that the actual decree ordered mother to pay child support. Mom filed a nunc pro tunc to fix this obvious error. The trial court entered the nunc pro tunc, correcting the error that it was actually father who was supposed to be paying child support. Father challenged that. In reviewing the trial court’s record, the appellate court was able to determine that this was in fact a clerical error and affirmed the trial court’s ruling.

Should You Sign a Waiver of Service?

July 3, 2014 | by Guest and Gray Law Firm

Your spouse has filed for divorce but tells you that you guys can agree on everything and that you do not need an attorney. They also tell you that you do not even have to be served by process server but instead that you can sign a “waiver”. This means that you sign the document, accept the petition informally from your spouse, and you will not be formally served by a process server or constable. Many people just sign the waiver without even knowing what it means or consulting with an attorney. The reality is you probably do not want to sign this. Reason being, when you sign this document you waive citation, filing an answer, and further notice in your divorce. Thus, if your spouse wanted to they could proceed forward with whatever final orders that they wanted to present to the court giving you absolutely none of the property and/or no rights to your children.

An example of just how bad a waiver of service could be is found in Garduza v. Castillo from the 5^th District Dallas County Court of Appeals. In that case, the husband appealed a Dallas trial court’s opinion to allow a default judgment order against husband and in favor of wife. The wife initially filed a pro se (not represented by an attorney) petition for divorce and represented to the trial court that she and her husband would agree on everything. Husband then filed a waiver of service that waived everything—future notice of any hearings, citation, filing an answer, being a part of the case. After that, the wife hired an attorney (because apparently she could not get that agreement) and they filed a couple of amended petitions seeking primary of the children, back child support, and other issues. The wife and her attorney then proceeded forward to the default docket and presented an order to the trial court which was signed because the husband filed a waiver. However, once the husband received a copy of the decree he was not very happy. All of the orders were completely against what he and his wife had initially discussed and he was not in agreement with the trial court’s determinations. Thus, he proceeded forward with an appeal. He still did not get an attorney and filed the appeal himself. The appeal was not properly filed; however, because the appellate court determined that husband was never “served” properly with the amended petitions this was sufficient to grant the appeal. That is, the appellate court did recognize that husband filed a waiver of service. However, the appellate court determined that wife filed two amended petitions and they were never “served” on the husband as required by Texas Rules of Procedure Rule 21a. That is, once you sign a waiver or even if you are served by a process server, if the other party files any additional affirmative pleadings they must give you proper notice of this. This is accomplished through sending the additional affirmative pleadings via certified mail return receipt requested. The appellate court found that the wife did not do this and thus they could overrule the trial court’s orders.

Chances are you will not be as lucky as Mr. Garduza. He genuinely skated by and got another bite at the apple from the sheer fact that his spouse filed amended petitions and failed to serve him those by mail. If they had not filed amended petitions and just proceeded forward with what the wife wanted in the orders, this would not have been a successful appeal. There are actually three morals to this story—always get an attorney to protect your rights and interests; do not sign a waiver unless you are absolutely certain of the orders that will be presented to the court AND you attend all hearings; and you have to be served by a process server with the initial pleading unless you sign a waiver of service and then all future notice goes to you by certified mail. If you are facing this situation, contact an attorney at Guest & Gray today.

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.

You Are NOT the Father—BUT You May Still Owe Child Support

May 6, 2014 | by Guest and Gray Law Firm

Are you facing a divorce with your spouse and you are concerned that you are not the father of your child? You have probably always had that feeling (given your spouse’s cheating history) that you are not the child’s biological father but you just have never acted on that feeling. However, now that you are facing a divorce you feel that it is important to raise this as an issue and deny your paternity. Absent addressing all of the issues that can arise with a denial of paternity, you need to know what can happen in the interim while the case is pending. You may not be the biological father, but you still may be the presumed father.

What is a presumed father?

You are the presumed father for all legal purposes if one of the following is true: you are married to the mother and the child was born during the marriage; you married the mother before the birth of the child even if the marriage could be invalid; you married the mother before the birth of the child and your name is on the birth certificate. This means, even if you are not the biological father of the child you are the father in the eyes of the law. Therefore, the judge can make orders according to that legal fact and most likely will do so.

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.

Spousal Maintenance for Disabled Spouse Post-Divorce: What if I Still Need It?

February 28, 2014 | by Guest and Gray Law Firm

You are divorced and in your final orders you were awarded spousal maintenance on the basis of your disability and inability to earn sufficient income. So, you went through all of the stages of proving your disability and proving that you could not earn the money that you need to meet your minimum reasonable needs and the judge ordered that your ex-spouse a certain amount per month to you for a certain period of time. As you know, spousal maintenance is governed by Chapter 8 of the Family Code and with respect to a disabled spouse, it does state that maintenance can be ordered for as long as the disability persists (longer than the statutorily limited period of time). If it is nearing the ending date of your receipt of the monthly spousal support payments, you are becoming worried because you do not know what you are going to do at this point. Can you seek further maintenance from the Court because you are still disabled and need the money to survive?

This question was directly addressed in Stephanie Ann Novick v. Andrew A. Shervin by the Fifth District Court of Appeals in Dallas. There, the trial court held that the wife was “presently disabled” and ordered that the husband should pay her “$2000 per month for 24 months.” When the time was drawing near for the husband’s payments to cease, the wife filed a motion to modify to continue the support payments and the trial court dismissed that claim to which the wife appealed. Therefore, the Dallas Court of Appeals had to determine whether or not the trial court erred in failing to honor the wife’s request in continuing the spousal support payments. In doing do, the Court reviewed a few other appellate cases involving this particular issue to seek guidance which led the Court to render a bright line rule to determine whether or not the support payments could be continued.

The Court held, “An award of spousal maintenance in a divorce decree is properly the subject of a motion for continuance only if the decree indicates the trial judge intended to make the award pursuant to section 8.054(b) rather than 8.054(a).” Section 8.054(b) allows a trial court to find the spouse disabled (giving guidance as to how and what it means) and in finding the spouse to be disabled, the trial court will make an award of maintenance. This award can be made subject to periodic request based upon the request of either party and also subject to a motion to modify. However, Section 8.504(a) places a duration limit on how long the court can award the maintenance for (5 years) and states that a trial court must render the shortest period possible unless the spouse’s ability to earn income is totally diminished by physical or mental disability. The key for this Court was that you can seek continuance of the maintenance if the award was under Section 8.054(b). An example of this type of award would be where a spouse is found to be permanently disabled, awarded spousal maintenance for longer than 5 years, and the Court also order that the spouse receiving support can seek continuance beyond the court-ordered termination date.

The Dangers of Handling Family Law Cases Without an Attorney

February 27, 2014 | by Guest and Gray Law Firm

Unfortunately, there are several horror stories about parties appearing pro se (without legal representation) in divorce, child custody, child support, etc. cases. In fact, most of the time people make the mistake thinking that they can take care of the case themselves and then realize after the fact that they completely screwed it all up. They then come to hire an attorney to unscrew those problems, which is most of the time easier said than done. The best advice that can be given is to hire an attorney right at the beginning to ensure that you are fully protected and correctly advised throughout the entire proceeding. You do not want to go through an entire divorce and then realize that you did something very bad and then try to appeal it, also on your own. Because it can almost be guaranteed that if you attempt the second feat, appealing a case, on your own it will most definitely not go in your favor.

This issue was directly addressed in In the Interest of C.M., A Child by the 5^th District Court of Appeals in Dallas. In that case, the mother and father appeared and agreed to the terms of their divorce, including the child custody terms. The Court, on the record, ensured several times that the mother understood what she was agreeing to and that this was in fact the final hearing and final orders to which the mother replied that she did understand. Unfortunately, the mother realized what she had agreed to post-prove up and realized that basically stripped her of parental rights and left her with only supervised visits. Therefore, without representation she thought she would appeal the divorce orders with respect to custody stating that she did not understand and she did not consent to the terms as they were based on “false accusations that were not proven.” However, the Court of Appeals revealed the record of testimony (which is made at all prove ups) and discovered that she did consent to the terms, several times, and even stated she understood several times.

What most people do not understand when they represent themselves is that they do have a right, when facing a consent judgment or agreed order, to withdraw your consent at any time before the judgment is rendered by the court. So, the problem in this case was that mother had failed to do that and was trying to withdraw her consent post-divorce which the Court of Appeals held cannot happen. In fact, the Court stated, “Agreed judgments, once rendered, are contracts between the parties that excuse error and operate to end all controversy between the parties.” Pate v. Pate, 874 S.W.2d 186, 188 (Tex. App.—Houston [14th Dist.] 1994, writ denied. Therefore, the Court held that they believed the mother’s appeal “was intended to constitute a withdrawal of her consent to the terms agreed upon at the bench trial” which was improper. In the Interest of C.M., at page 11.