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.

International Parental Kidnapping – Yes, it’s real.

International parental kidnapping does exist, and does happen.  In fact, major news networks reported in September 2014 that a Beijing-bound United Airlines flight had to return to Dulles International Airport after law enforcement was made aware that a mother was illegally taking her child out of the country.  Fortunately, the father had a decree with language preventing the child from being removed from the United States without his approval and got wind of the travel before it was too late.

With today’s more mobile workforce and population, it is more important than ever to make sure you address these concerns with specific language in any decree or order regarding children.  Without having a court-order to rely on, a parent does not have as strong a basis to prevent these international parental kidnappings.  And once out of the country, it is very hard to force any return.  There are international laws to refer to and attempt to rely upon, but both countries must be signatories, and even then, the process is expensive, long, and the result uncertain.  You are better served by making sure language is in the decree or order preventing international travel without consent, and then making sure the proper law enforcement agencies have flagged the child’s passport in case the other parent attempts to flee.

Can False Abuse Allegations Affect Custody?

You bet.  There are plenty of cases where one parent decides to allege that the other abuses their children, whether it is verbal, emotional, physical, or even sexual.  Many times these allegations are untrue, unfounded, and designed to simply force a party to give in.  Of course, if you believe something IS going on, you need to protect your child by conferring with the proper authorities.  But this blog is really about those situations where there is no basis – a parent is just trying to get their way.

In those instances, we sometimes see that even after professionals are brought in and determine that no abuse occurred, the accusing parent will continue to make the allegations, and report to other experts, trying to find someone, anyone, to agree with them.  Eventually the Court can tire of these games, and in some cases, we see that the Court will give custody to the parent being falsely accused, based on the idea that these continued allegations destroy the parent-child relationship, or at least poison it, and that the child’s best interest would be served by living with the non-accusing parent.  For a case on point, check out In the Interest of A.D., No. 14-12-00914-CV, or click In the Interest of A.D. 2014-14-12-00914-cv (false allegations of abuse).

What Constitutes Telephone Harassment?

We often get told that someone is being harassed by telephone, but what does that really mean?

There is a great case, Perone v. Texas, which talks all about it in a criminal case context.  An ex-husband was convicted of harassment via telephone and then challenged the conviction based on, among other things, most of the communications were text messages and face time, not the traditional telephone calls.

Main points to see:

  1. The person commits the misdemeanor offense of harassment if, with intent to harass, annoy, alarm, abuse, torment, or embarrass another, (1) he causes the telephone of another to ring repeatedly or makes repeated telephone communications anonymously or in a manner reasonably likely to harass, annoy, alarm, abuse, torment, embarrass, or offend another; or (2) he sends repeated electronic communications in a manner reasonably likely to harass, annoy, alarm, abuse, torment, embarrass, or offend another. (Texas Penal Code 42.07(a).
  2. Text messages fit this definition;
  3. FaceTime fits this definition;
  4. While some messages did relate to parenting logistics, others referred to the ex-husband’s dating and sexual activity and/or criticize his ex-wife;
  5. Intent can be determined by a jury (or Judge in the family law context as the trier of fact);
  6. Intent can be inferred by looking at the acts, words, or conduct of the accused, including the circumstances surrounding the acts;
  7. At least four phone calls in a little over a month were sufficient in a case that the calls were ‘repeated.’ (Blount v. State, 961 S.W.2d 282, 284 (Tex.App.-Houston[1st Dist.] 1997, pet. ref’d).

How does this relate to you?

Be ready to show that the intent fits the required intent (to harass, annoy, alarm, abuse, torment, or embarrass another), and how that actually occurred.  Be ready to show that the calls were repeated.  And be ready to show how it affected you!

 

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