Penny wise…

Many people try to take the ‘cheap’ option in life, looking at the immediate effects, and fail to recognize the expensive long-term costs those decisions have.

This happens in litigation all the time, especially with trying to determine someone’s income for child support purposes. The party that would receive child support does not want to spend the money to confirm the paying party’s income using any number of tools (motions to compel, depositions, subpoenas to the employer of that person), and so run the risk of not being able to prove that big salary to the Court. Then the cost-conscious litigant gets child support based on the presumption of minimum-wage, forty-hour a week salary, because they cannot prove up any other income.

Take for example the case of Reagins v. Walker, 14-15-00764-CV (Tex.App. Dist. 03/07/2017). Here, Mother has the children and is asking for an increase in child support. Father does not want to participate, refuses to turn over financial income voluntarily, and actually does not appear at final trial. We do not know if he refused to comply with discovery requests, but that is likely. He is allegedly a petroleum engineer (his LinkedIn states ‘Field Service Engineer at GE Oil and Gas’). Seems easy – Father is not showing up, just have Mother testify, right? Not quite. Sure, at the trial court level she won, but then Father appealed.

The Court of Appeals stated her testimony, as provided, was ‘mere speculation’ and not ‘evidence.’ Scouting around on the internet and seeing what a professional with his qualifications made did not cut it. The case was sent back to the trial court to try the issue again.

Talk about being “penny wise and pound foolish.” Now Mother has incurred the cost of a trial once, the cost of an appeal, and then will have to negotiate or go to trial a second time. Being cheap up front did not work.

You Can Only Make the OAG do so Much…

Recently , the Fourteenth Court of Appeals confirmed limits on what you can force the Office of the Attorney General (OAG) to do. In in-re-h-g-j  No. 14-15-00551-CV, 2016 WL 6561468 (Tex. App.–Houston [14th Dist.] 2016, no pet. h.) (11-03-16), the Court used Texas Government Code 22.002(c) to bar the lower court from ordering the OAG to disburse funds to a party other than the custodial parent.

Texas Government Code 22.002(c) states:

Only the supreme court has the authority to issue a writ of mandamus or injunction, or any other mandatory or compulsory writ or process, against any of the officers of the executive departments of the government of this state to order or compel the performance of a judicial, ministerial, or discretionary act or duty that, by state law, the officer or officers are authorized to perform.

An injunction includes an order mandating particular conduct, such as making a disbursement to the amicus in this case.

Since the Attorney General himself is an officer of the executive department, his agency falls under this statute, and only the Supreme Court of Texas could compel the disbursement of funds.

While the holding is correct, this limits the ability of a non-custodial parent to recover funds that should not have been paid or were taken. For example, sometimes there is a delay between a new final order terminating child support and an employer implementing that order, and wages are improperly withheld. Or a tax check for over payment of taxes is withheld by the OAG because the order terminating child support has not been processed. Both situations result in monies going to the custodial parent and now, without the option to force the OAG to put a hold on those funds for disbursement back to the noncustodial parent, the noncustodial parent must sue the custodial parent. Many times they can end up with a judgment but the money is long gone.

NOTE: This court chose to sidestep an analysis of executive director as outlined in Texas Gov’t Code 22.002(c), such as the Attorney General, and an executive agency, like the Office of the Attorney General, but I would believe that the general thought of separation of powers should hold true to both.

 

Common Law Marriage -Very Hard to Prove in Texas

What is a ‘common law’ marriage? Most people believe it is when two people live together as a couple for some amount of time. Two years is a common time-frame stated. But Texas has a specific three-pronged test.

Under Texas law, to prove a common law marriage, the three prongs are:

  1. There is an agreement to be married; and
  2. After the agreement, the two live together in Texas as husband and wife (now probably as a married couple, not just male and female, after Obergefell v. Hodges); and
  3. The couple represented to others in Texas that they were married.

— Winfield v. Renfro, 821 S.W.2d 640, 645 (Tex. App.–Houston [1st Dist.] 1991, writ denied.

The agreement to be married, cohabitation, and representing to others can be established by direct or circumstantial evidence.

The most difficult part under this test is proving that there was an actual agreement between the two persons to be married. Most evidence that might be relied on would be things such as statements to the public made by the parties, tax returns showing the parties filed a joint-married, holding property together, or even listing both names on bank accounts or other assets. Courts have parsed this evidence out as not evidence of an agreement to be married, but rather fitting under the ‘representing to others’ prong. For example, attending social events and having the parties refer to each other as spouses only fits under the second prong, and is not evidence of an agreement to be married. The Estate of Francis W. Sinatra, Jr. v. Sinatra, 13-14-00565-CV (Tex.App. Dist.) 2016. Moreover, when there is direct evidence which definitely shows that there was no agreement, an agreement cannot be implied.

Why does it matter if there is a common law marriage? Well, when couples that never formally married decide to separate, there are very different outcomes depending on if a common law marriage exists. This is especially true if one person dropped out of the workforce to raise children, and those children are now grown. If a common law marriage is found to exist, that person will have access to the assets accumulated during the course of the common law marriage. Those assets could be substantial. If there is no common law marriage, that person is likely forced to walk away and take only what their partner chooses to give them.

What should a person do if they are not formally married and living with someone? Make sure the two of you are on the same page. Make sure that each has thought through what happens if you separate. And then make sure any agreements are in writing while you both are on the same page. This could be a cohabitation agreement, a written statement of agreement of common law marriage, or a number of other things.

The Importance of a Correct Citation

What is a citation?  It is the additional document the clerks make to send with the original petition for service.

What does it do? Among other things, a citation lays out the rights a defendant to a lawsuit has, the answer day, the parties, and that if the defendant fails to respond, a default judgment could be entered against him.

Why is it important?  Well, mainly because it is required under Texas law.  And if it is wrong, the defendant can have a default judgment overturned.  That’s time and money wasted.

An example?  Well, in Heike Curley v. Michael Curley, 2014 WL 3867798, a defendant was served in a divorce case that involved children.  Unfortunately, the citation used did not have the children listed.  The defendant failed to answer, and a default was entered.  The defendant then was able to overturn the default on appeal because of the defective citation.

The take away? Make sure your citations are correct.  It is on you, not the court, because if a default is entered on a defective citation, and then the defendant files the appeal, there is going to be a new trial.

No Attorney’s Fees for Enforcement of Spousal Maintenance

Not one I would have guessed, but thanks to John Kappel’s attention to detail and thorough research, it turns out Texas law does not allow for a party to get attorney’s fees in a successful enforcement action on spousal maintenance.

Why? Because in Texas, attorney’s fees can only be granted if allowed by statute or a contract between the parties. Tucker v. Thomas, 419 S.W.3d 292, 295 (Tex. 2013).

While attorney’s fees ARE allowed by statute for enforcement of child support (Tex. Fam. Code 157.167), or enforcement of a division of property (Tex. Fam. Code 9.014), no such statute exists for the enforcement of spousal maintenance.

My Child Custody Case has to be transferred – again?!

Many parents run into the situation where there may be a pending child custody matter and the parent with possession decides to move, yet again. But now it’s to a new county. Do you have to move the case, chasing the child, all across Texas? No.

Take the case of In Re CG (jurisdiction to do anything in Mod)., (Number 13-14-00544-CV, 13th District Court of Appeals). The original order (a final decree of divorce) regarding the child was out of Sherman County. Mother had primary of the child, and when Father wanted to modify the orders less than a year later, both Mother and child lived in Moore County. Now, since the final order was out of Sherman County, the Court in that county had continuing, exclusive jurisdiction – Father had to file the modification there. But since the child had not been there for over six months, at the same time he filed the modification, he filed a motion to transfer to Moore County. Good job. Transfer accepted and done.

Then, in 2012, Mother and child moved again to Randall County. Action is still pending in Moore County, no one has lived there for over six months. Father files to transfer… and here’s the hiccup. Moore County transferred the case to Nueces County. Legally, a motion to transfer must be filed at the time of the initial pleadings (2011 when the case was transferred in). Otherwise, the Court cannot transfer the case (at least in the 13th, 1st, 14th, and 8th Districts). Only in the 3rd District (which includes Travis County – Austin) could this work.

Well, the Court transfers the case, and everything that happens in Nueces County ends up getting set aside. All the time, money, and outcomes — for nothing. Since the transfer was not proper, no court order out of Nueces County is proper, except for the order dismissing the case. Everything had to be redone in Moore County.

So not only does the case point out a (small) split in the appellate courts, but that, if you are debating a transfer, you need to do it up front with the initial pleadings.

Now – SHOULD you move the case? That depends on a range of factors, and the facts in your particular case. At this point, you should really consult an attorney to review your options.

How to Change Court-Ordered Spousal Maintenance

In Texas, courts CAN order one party to pay another spousal maintenance, even if courts do not often choose this option.  If a party IS ordered to pay spousal maintenance, can they get it changed in the future?

Yes, but there has to be a ‘material and substantial change in circumstances’ in the factors that the Court relied on in determining that a spouse required spousal maintenance.  Tex. Fam. Code 8.057(c).

Keep in mind that while a party can get spousal maintenance changed (increased, decreased or eliminated), the process does take time.  The maintenance order cannot be changed without a hearing, and that hearing requires notice governed under TRCP 245 (final trial notices), so expect at least a 45 day wait from a pretrial hearing.

In other words, a party wanting to change spousal maintenance needs to jump on this quickly, and stay on top of it.  File the motion to modify as soon as the conditions have ‘materially and substantially changed,’ get the other party served, and then set up the pretrial hearing to get a final trial date.  If discovery needs to be done, then there are going to be additional delays.  But until that hearing takes place, there will not be any change in the court-ordered spousal maintenance.

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