Mark
Unger
Attorney at Law
10010 San Pedro,
Ste. 660
San Antonio, Texas 78216
T: 210.366.9676
406 Sterzing, Second Floor
Austin, Texas, 78704`
(512) 474-1477
Miunger@aol.com
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Mark
Unger
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TRYING
A TEMPORARY ORDERS HEARING EFFICIENTLY
ANATOMY
OF A CIVIL TRIAL VII
The
Honorable Judge Martha Tanner Mark I. Unger Karen
L.
Marvel
Amy A. Geistweidt
TABLE
OF CONTENTS I.
Introduction...............................................................................................................................
3
I. Introduction This paper is written to help the non family lawyer recognize what is important and what is not important in trying a temporary orders hearing. It is a brief overview and not a complete guide. II.
Effective Preparation by Attorney Prior to the Temporary Orders Hearing
Although the hearing comes very quickly in a temporary orders hearing,
Petitioner having a maximum of fourteen days notice if a Temporary Restraining
Order has been filed and Respondent sometimes having no more than three days the
courts will still expect the attorneys to be prepared for the hearing.
Therefore, good organization of helpful trial exhibits ahead of time will
help in effective presentation. A
financial information statement should always be prepared if there will be any
issue on support or payment of bills and debts during the proceeding.
See Appendix. Remember
to have multiple copies of the financial information statement at the time of
the hearing so that the court, the witness and opposing counsel can review them. Make
sure that you and your client have reviewed the financial information given on
the financial information statement. It
is not good to have over exaggerated or under exaggerated numbers when you are
requesting support for your client. Additionally,
on cross-examination it is likely that your client is going to be questioned as
to how the numbers on the financial information statement were derived. If
support is an issue you will want to have copies of pay stubs to produce as
exhibits. Again it is important
that you have multiple copies that are clear and easy for everyone to read. If
you are requesting child support or if it is likely that your client will be
responsible to pay child support you should prepare the calculations for child
support prior to the time of the hearing. Again
your client should be familiar with the amounts set out for the child support at
the time that they testify. If
you do not have copies of the opposing sides wage statements prior to the
hearing you should contact the opposing attorney and see if you can not agree to
exchanging these items prior to the hearing.
If the opposing side is unwilling to exchange pay statements it may be a
good time to review your request for attorneys fees. Other exhibits that may be helpful are photographs for where your client proposes that the children reside during temporary orders. Additionally, you may want to bring photographs of the children spending time around friends and family of your client. Rarely in temporary orders will a court have time to review a videotape or listen to a complete audiotape however a few photographs may give them a much better picture of the surroundings of which your client is proposing the child to reside temporarily. Additionally,
you will want to prepare proposed Temporary Orders.
You should review this with your client ahead of time.
This should give you and your client a clear map of what you want to
accomplish during a temporary orders hearing.
Once the court has made the ruling it is easy to make any changes and
have it immediately signed so that anything that you may want to later enforce
has been already put into written form. III.
Efficiently Preparing Your Client for Temporary Orders Hearing The single most important thing that you will do is to quickly prepare your client for the temporary orders hearing. There are certain basic instructions for the temporary orders hearing. There are certain basic instructions that must be covered with your client prior to the temporary orders hearing they are as follows:
IV. Major Issues At Temporary
Orders
A. Jurisdiction and Initial
Pleading Jurisdiction
is crucial at the initial filing of the divorce suit affecting the parent-child
relationship. As such, a respondent must raise any challenge to the issue
in his or her initial pleading. The
intricacies of the various acts dealing with property and child custody and
support issues are enormous and convoluted and a comprehensive approach is well
beyond the scope of this paper. However,
there is at the base level a dichotomy between the issues--that of dissolution
of marriage (property issues) and that dealing with the child(ren) of the
marriage (custody, visitation and child support).
The threshold issue upon filing of a petition for divorce with children
is whether or not there is jurisdiction over the respondent sufficient to allow
the proceeding to go forward. This
question is more complicated than it seems and deals with multiple sections of
the Texas Family Code and related federal legislation.
These issues only come up if the non-filing party does not reside in the
State of Texas.
1) General
Rule--Residency requirements
The general rule is quasi-jurisdictional in that a suit for divorce may
not be maintained in the state unless at the time the suit is filed either the
petitioner or respondent has been domiciled in Texas for at least six (6) months
and a resident of the county in which he or she filed for at least ninety (90)
days. TFC §6..301
The proper method of challenge this residency requirement would be a plea
in abatement. A plea in abatement
and dismissal is mandatory when divorce petitioner has not met durational county
residency requirements. Cook v.
Mayfield, 886 S.W.2d 840 (Tex.App.--Waco 1994, no writ).
But, while residency requirements are not jurisdictional, they must be
met before rendition of the divorce.
McCaskill v. McCaskill, 761 S.W.2d 470 (Tex.App.--Corpus Christi
1998, writ denied). TFC
§6.302 allows a nonresident spouse to file in whatever county in the State
of Texas the resident spouse is living in so long as the resident spouse has
been a domiciliary of this state for at least six months. This is an often overlooked provision, which allows a
nonresident to file for suit without meeting the ninety (90) day requirement. TFC
§6.304 allows armed service personnel stationed in Texas even though they
may intend to return to another state for their domicile upon discharge. Although they may not be residents of the State of Texas if
they are serving in the armed forces, have been in the state for six (6) months,
in the county which they are filing for at least ninety (90) days they are
considered to be a Texas domiciliary for the purpose of a divorce. Practice Tip:
As a matter of practicality, it can be argued that a divorce with
children should proceed in the county in which the children reside, assuming the
residency requirements can be fulfilled by the time of rendition.
However, keep in mind that usually the "first-filed" divorce
establishes the dominant jurisdiction, but "second-filed" Court may
find an estoppel on facts, if you can demonstrate unreasonable delay in service
of citation. Clawson v. Millard, 934
S.W.2d 899 (Tex.App.--Houston [1st Dist.] 1996, no writ). B.
Status Jurisdiction/Subject Matter Jurisdiction Divorce -- The
Texas Family Code further provides that the Court may make a "status
adjudication," divorcing the parties per §6.301 of the Texas Family Code,
even if the responding spouse is a non-resident of the State.
The Court may exercise personal jurisdiction over a non-resident
respondent, per §6.305 of the code if Texas is the last marital residence or
there is any basis consistent with the constitutions of this state and of the
United States, regarding such personal jurisdiction.
A Court may exercise subject matter jurisdiction only for those portions
of the suit for which it has authority, as limited by the required personal
jurisdiction over a nonresident respondent, the required jurisdiction under the Uniform
Child Custody Jurisdiction and Enforcement Act (UCCJEA) or the required
jurisdiction under the Uniform Interstate Family Support Act (UIFSA).
In all cases, the Court must have personal jurisdiction to render an
Order for child support or divide property.
C. Personal
Jurisdiction--Property Division
Acquiring status of subject matter jurisdiction in dealing with a
nonresident respondent, however, may not provide complete relief to the spouse
seeking a divorce from the non-resident defendant who has no minimum contacts
with the State of Texas. While the Court may have the ability to adjudicate the
parties' status and grant the divorce, it may not have jurisdiction to
adjudicate the parties' rights and divide property if it is found that there is
no personal jurisdiction or long-arm jurisdiction over the non-resident
respondent. In order to challenge
personal jurisdiction over a non-resident respondent, as in any case, the
respondent must file a special appearance prior to any general appearance. While a general appearance will of course waive any challenge
to personal jurisdiction, if the Court sustains the Respondent-spouse's special
appearance (ruling that the Court does not have personal jurisdiction, if the
Court sustains the Respondent-spouse's special appearance (ruling that the Court
does not have personal jurisdiction over the non-resident Respondent), the Court
should not have jurisdiction to divide the marital estate.
Dawson-Austin v. Austin, 968 S.W.2d 319 (Tex. 1998);
Hoffman v, Hoffman, 821 S.W.2d 3 (Tex App.-- Fort Worth 1992, no
writ). The Court explains the rule in Texas as follows: "Where
the trial court in a divorce proceeding has no personal jurisdiction over the
respondent, the trial court has the jurisdiction to grant the divorce, but not
to determine the managing conservatorship of children or divide property outside
the State of Texas." Citing
Comisky v. Comisky, 597 S.W.2d 6, 8 (Tex.Civ.App.-- Beaumont 1980, no writ).
It may also lack jurisdiction to divide property within the state.
See Shaffer v. Heitner, 433 U.S. 186, 212, 97 S.Ct. 2569, 2584
(1977).
However, See Bloom v. Bloom, 935 S.W.2d, 942, 948 (Tex.App.San Antonio 1996, no writ; the Court
held that once a trial court obtains subject matter jurisdiction under §3.26(a)
[§6.305], it also acquires jurisdiction over the respondent in a SAPCR,
including jurisdiction to make a child custody determination by initial
decree
if
Texas
is the home state of the child on the date of
commencement. D. Personal Jurisdiction--Custody According to Texas Family Code, §102.011, the Court can establish personal jurisdiction over the non-resident respondent or over that person's personal representative, if:
1.
That person is personally served with citation in this state;
2.
The person consents to this states jurisdiction; 3. The child resides in
this state as a result of the acts or directives of the respondent;
4.
The person resided with the child in this state; 5. The person resided in
this state and provided expenses or support for the child. 6. The person had sexual
relations (intercourse) in the state and the child may have been conceived by
that act of intercourse; 7. The person is
registered with the paternity registry of the state; or 8. There is any basis
consistent with the constitutions of this state and the United States for
exercise of personal jurisdiction.
E. Personal
Jurisdiction -- Child Support/Parentage The
requirements to establish long-arm jurisdiction (over a non-resident Respondent)
for the purposes of establishing child support or determining parentage are
addressed in the Uniform Interstate Family Support Act (UIFSA) and tracks
the possibilities listed in 1 through 8, above.
TFC §159.201, except that number 5 reads the
child resides in the state as a result of the acts or the directives of the
individual. .
Child support is without a doubt a "rights" adjudication, which
has ramifications regarding party's ability to pay, as well as the potential
judgment for retroactive child support being assessed against the party.
As such, and Order necessarily hinges on the Respondent's rights and
therefore is contingent upon the Court's ability to exercise personal
jurisdiction over that Respondent. This
is in contrast to a "status" adjudication, such as the dissolution of
the marriage. See Dawson-Austin
v. Austin, 968 S.W.2d 319, 324 (Tex. 1998); See also In the Interest of
S.A.V., 837 S.W. 2d 80, 84 (Tex. 1992).
F. Subject
Matter Jurisdiction for Custody The Texas Family Code provides that the court may exercise subject matter jurisdiction (ostensibly to make a custody determination) as provided by the UCCJEA. Thus the requirements to establish long-arm jurisdiction for the purpose of establishing custody ( and visitation per the definition of "custody determination" in Texas Family Code §152.102) are addressed in the UCCJEA and, except for Temporary Emergency Jurisdiction situations, provides jurisdiction as follows: "Except for Temporary Emergency Jurisdiction situations. a court of this state has jurisdiction to make an initial child custody determination only if: (1) this state is the home of
the child at the time the suit is filed, or was the home within the prior six
(6) months and the child is absent form this state, but a parent or person
acting as parent continues to live in the state; (2) a court of another jurisdiction
under (1) above a court of the home state of the child has declined to exercise
jurisdiction on the ground that this state is the more appropriate form; and (1)
the child and the child's parent's, or the child and at least one parent
or a person acting as a parent, have a significant connection with this state
other than mere physical presence, and (2)
substantial evidence is available in this state concerning the child's
care, protection, training, and personal relationships; (3) all courts having
jurisdiction have declined to exercise jurisdiction on the ground that this
state is the more appropriate form to determine custody; or (4) no court of any other state
would have jurisdiction under the criteria in 1, 2, or 3 above.
See TFC § 152.201: UCCJEA
The act further priorities the home state over all other bases of
jurisdiction for child custody matters, so that if a party can establish this
state as the home state, it then will have exclusive priority over all other
possible jurisdictions, at least for the purposes of a custody determination.
A Court can still establish emergency jurisdiction, in order to protect
the child form mistreatment of abuse or the threat of mistreating or abuse,
though this is a temporary measure. V.
The Ruling by the Court and What It Means
A.
Conservatorship:
Who's baby is it anyway? The basic concepts and concerns have not changed much over the years with respect to conservatorship. In fact, the majority of issues that have been addressed by the legislature have focused on the trees rather than the forest, with conservatorship, most commonly associated with determining the residence of the child, being addressed with the codification of such concerns regarding domestic violence, jurisdictional normalization, and the nomenclative change of presumption of one sole managing conservator to joint managing conservators. The basic premise of the best interest of the child controls, regardless of the child's preference and unless there is a significant health or safety issue with evidence to back it up, the child(ren) more often that not will end up residing with their mother.
B. JMC V. SMC --
There is very little difference between the rights and duties assigned
between a Joint Managing Conservator and a Sole Managing Conservator since the
legislature shifted the presumption to Joint Managing Conservatorship in 1995.
However, there appears to be a psychological aspect to a client's
perception of "custody" in this realm.
As such, the legislature has addressed this issue and absent any health
and safety concerns, the presumption is usually followed.
Practice
Tip: If it's a close call on
custody and the client can afford to proceed at the time of divorce, it's
probably better to seek custody at that time, rather than agree to a Sole
Managing Conservatorship arrangement, hoping to come back in the near future.
C.
Rights And Duties
The rights and duties of the (Primary) JMC, which are exclusive and which
should be included in the Temporary Order (and Final Order), are the right to
determine the residence of the child; the
right to receive child support; and
potentially any of the remaining rights and duties of a parent as provided by TFC
§151.003. These may include
(possibly subject to consultation with the other parent) the right to consent to
(non-emergency) medical, dental, and surgical treatment involving invasive
procedures, and to consent to psychiatric and psychological treatment, the right
to represent the child in legal action and to make other decisions of
substantial legal significance concerning the child; the right to consent to
marriage and to enlistment in the armed forces of the United States; the right
to make decisions concerning the child's education; the right to the services
and earnings of the child; and the right to act as an agent of the child
regarding the child's estate if required by the government. The rights of both parents at all times include the
following: To
receive information and to confer to the extent possible on health, educational,
welfare issues; of access to medical, dental, psychological and educational
records; to consult with school officials or medical providers; to attend school
activities and to be designated as a person to contact in case of emergency; to
consent emergency medical treatment; and to manage the child's estate, as
created by that parent. TFC §153.073. Practice
Tip: Effective September 1,
1999 and regardless of the date the suit was filed, the Court, when rendering an
Order providing for Joint Managing Conservatorship, shall designate which
conservator has the exclusive right to determine the primary residence of the
child and either establish a geographic area (county and contiguous
counties) within which the residence without regard to geographic location. In
addition and generally speaking, the primary JMC will be given the exclusive
rights and duties of an SMC, and should be made in the primary's favor in the
event of future disagreements. This
has the effect of mandating consultation but avoiding paralysis should there be
a disagreement on one of the decisions.
D.
Choice of Conservator
The age at which a child can choose which parent he or she wants to live
with is twelve (12). While
this provides a preference by a child, the best interest test still applies and
a Judge can overrule such a choice by finding that if is not in that child's
best interest. In addition, on
Motion of a party, the Court SHALL, in chambers, interview a child twelve or
older, and MAY interview an child under 12 years of age.
TFC §153.009.
E. Possession and
Access/Visitation
Possession and access or visitation is governed by Texas Family Code §153.251
et seq. The statutory guidelines and specifically the Standard
Possession Order are rebuttably presumed to apply to any child over three years of
age. There are no guidelines for a child under three years of age, however
the Court shall render an Order appropriate under the circumstances for
possession of a child under three years of age and shall render a
prospective Order to take effect on the child's third birthday,
presumably be the Standard Possession Order (SPO). TFC §153.254. (1)
Standard Possession Order (SPO) The SPO provides, among other
things for visitation, depending on whether the conservators
live within 100 miles of each other or farther than 100 miles of each other.
The most
typical example, of a non-possessory conservator (NPC) who lives within 100
miles, would allow visitation on the first, third and fifth weekends of each
month, beginning on Fridays at either 6:00
p.m. or when school is dismissed, and ending
on the following Sunday at 6:00 p.m, or when school
resumes, In addition, major holidays are shared depending on
whether it is an odd or even year.
Furthermore, the SPO provides for Wednesday visitation either from 6:00 p.m. to
8:00 p.m. or overnight, if the (NPC)
has taken this overnight election period at or before the rendition of the governing
Order. Extended summer visitation is provided the NPC if notice is given no
later than April 1 of the applicable year, and the managing conservator (MC) can
elect
to retain one weekend (if
they reside within 100 miles) or 21 days (if they reside more than
100 miles apart), during which he or she can
retain possession and access during that summer, so long as the CP gives notice no
later than April 15 of the
applicable year, However, the SPO also provides for weekend visitation by the
managing conservator if this deadline is missed and the code should be
consulted if an arrangement cannot
be worked out. Of course, while the parties can agree to other visitation arrangements,
and while it is always advisable to suggest that they work with each other in
this regard, the standard visitation order usually
means
every other weekend to most clients and explaining the minutiae of
the various detailed provisions is difficult and time consuming in most
instances.
(2)
Modified
SPO -- Suggestions When modifying the SPO, remember that the more complicated
you get, the more difficult it is to draft and make enforceable. In addition, when you depart from the
norm, you will then need to worry
about workability as well as public policy concerns if it should ever be
challenged, either appeal, in future modification or enforcement. However, given
this caveat, sometimes the easiest way to hang someone is to give them enough
rope to accomplish this task for themselves. Often times the parent seeking more
(or even standard) visitation believes him or herself more capable of performing
than is really the case. This is when the attorney must realize that their
client may not be able
to handle such a restricted or modified arrangement and their only chance at
standard is to fight for it then and there. Criminal defense attorneys
are analogously confronted with this situation when they must advise their
client to choose between deferred adjudication, which is great if the client can
satisfy the terms of their probation, but which carries the potential maximum
punishment range available if they screw it
up; and straight probation, which allows the conviction on the record, but
limits the potential jail term if they can't
successfully complete the probationary term. One such modified
scenario would be a stair-step arrangement, whereas the NPC is provided with
restricted and/or supervised visitation and if he or she is successful
over a specified
period of time, usually three
to six months, then visitation could revert to standard. You can make this as
simple or as complicated as possible, but where there is a
borderline concern for a child's safety
or welfare, or you have a situation
where a parent all of a sudden (when an action
is filed) wants to exercise standard
visitation, this could be a good way to either hold him
or her to it, or show that he or
she really isn't interested in
standard visitation,. Practice Tip: Another minor way to protect against
insincere visitation goals of a NCP, as well as making it easier for your clients [managing conservator] planning ability
with regards to visitation would
be a notice provision. You can either provide for notice of inability to
exercise possession (more
common) or notice of ability to exercise possession (less common but possibly
used to provide for
future modifications by adding a statement that failure to abide by these
requirements may be considered
in future modification of this Order).
(3)
Supervised/Restricted Visitation
While the Texas Family
Code provides
for the best interest of the child to include not only the health and safety of the
child, but also for the emotional and psychological well being of the child,
very often the latter is overlooked when crafting orders for visitation.
Notwithstanding this unfortunate but almost inevitable recurrence, the
most extreme cases, and usually the ones that draw a
supervised visitation order, will typically involve
some sort of physical threat to the child(ren). In this case, not only must the
family lawyer look to the temporary orders to craft protection
but, in the case of abuse, the lawyer is required to report such abuse within 48
hours after first suspecting it. TFC
§261.101, This information is not protected, although the attorney
who reports abuse may not be required to testify about the underlying
communications with his or her client. See Tex. Att'y Gen.DM-458. In
such cases where there exists a threat to the health or safety of the child(ren), supervised visitation is well
warranted. More and more, this can be attributed to the presence of third
parties during
visitation. Instances can occur when a party remarries or lives with
another partner and the abusing third party can either be that other
partner
(very often a stepfather) or offspring from that other
partner (very often older step-siblings). In addition, and due to the growing
number of young parents, the NPC will often end up living with friends and/or
multiple roommates. This provides a problem for the Judge who is then faced with
the prospect of being unable to order or control a nonparty
to the litigation. In such situations, and when the threat can be documented,
supervised and/or
restricted visitation may well be in the child's best interest. Very often it is the parent of
the parent, or the grandparent, who is willing to take on this role and
is more acceptable to all parties. Absent such agreement, supervised visitation
is available at either S.A. Kid's Exchange (334 W. Mistletoe. S.
Central San Antonio; 733-3349) or KidShare (4245 Center Gate; N.E. San Antonio; 946-8524),
or some other appropriate exchange. In this case the cost of supervised
visitation, while most often calculated on a sliding scale, may be a contested issue and very well
may prevent the visitation from occurring, though this should never be the goal.
Also note that in ordering the terms of possession of a
child under an order other than a SPO, the court shall be guided not only by the
guidelines established by the SPO, but may also consider
the
age, developmental status, circumstances, needs, best interest of the child,
circumstances of
the managing conservator and of the parent named as a possessory
conservatory, and any other relevant factor. TFC §153.256. F.
Protective Order/Restraining Order If
there is a history of family violence or the threat of family violence then it
is important for the
attorney to concurrently obtain a protective order in conjunction with the
petition for divorce. In such an instance, an application for a
protective order
should be filed along with a request for a temporary orders hearing. If the
Court finds,
by the affidavit testimony of
the applicant, that family violence has occurred and is likely to occur in the
future, then it shall issue a Temporary Ex Parte Protective
Order. Such an order is valid for the period specified in the Order, not to
extend beyond 20
days, but may be extended for additional 20-day periods upon request of the
applicant or upon the Court's own motion. This Order can prohibit the respondent from
the
laundry list of items listed in Texas Family Code sections 85.021 and 85.022. If, however, there is a
suit pending, a represented party should always be noticed when a protective order
is sought, absent true emergency circumstances. In addition and
effective September 1, 1999, the Court may suspend a
license to carry
a concealed handgun that is held by a person found to have committed family violence. Furthermore
and after hearing, a protective order can now be issued for a maximum of two years
instead
of one year. In order to exclude the respondent from a joint residence, the
applicant must appear and give testimony to the Court, in addition
to the affidavit requirement. A respondent in violation of the protective order will be
immediately arrested. If
there is no danger of family violence, however, a Petitioner in a divorce
action, can still obtain an order
restraining the same abusive and violent activities, as well as maintaining the
status quo of
the community estate, by
prohibiting the respondent from committing any of the same acts listed
above. In this case, as in the
protective order scenario, the respondent is authorized only to spend
money on reasonable and necessary living expenses, reasonable and
necessary business expenses and
attorneys fees. Such an order is most often designed to preserve the community
estate so that a just and right
division may be accomplished. A respondent found in violation of this type of
order, after motion and notice, may be held in contempt of court. Practice Tip: Always notify opposing counsel
regarding an (ex parte) protective order application if there is an ongoing
suit. This is an advisory extension of the
local rule implying
a notice requirement for TRO's and the content requirement of the name and
address of the opposing attorney in an application for a protective order. See
Bexar County, Tex., Civ. Dist. Ct. R., 3.10,
See TFC §82.041 (a) (10).
G. Child Support
Unless the net resources of the party to pay child support (NPC) are
above $6,000.00 per month, or the NPC is self-employed, calculation of the
amount of child support to be paid should not be very difficult. Texas
Family Code §154.001 et seq.
Whenever feasible, gross income should be calculated on an annual basis
and then recalculated to determine average monthly gross income should be
calculated on an annual basis and then recalculated to determine average monthly
gross income. TFC
§154.061. Keep in mind that child support is calculated on one's
earning capacity and if the NPC has recently changed/quit a job, the provision
for intentional unemployment or underemployment may apply.
TFC
§154.066. Once the gross monthly earning capacity has been computed,
the "net" monthly amount must be determined by using the Office of the
Attorney General's Employed Persons 2003 Tax Chart, found in the Family Code.
TFC §154.132; See Appendix. After arriving at the net amount, the attorney must
calculate the appropriate percentage in order to know how much the NPC will have
to pay. This is done depending on
how many (if any) children the NCP has a duty to support.
The NCP will pay 20% for one child, assuming he has no other children
that he is legally obligated to support. He
will pay 5% for each additional child, assuming he has no other children to
support outside of the cause of action pending before the Court.
If he does have additional children to support, then he is entitled to a
2.5% reduction in the percentage applied for the calculation, at least for the
first "other" child. For
additional children, the reduction becomes less as the number of children
increases. ProCalc from ProDoc
makes the presumed child support calculation very easy and can be done either
from your desktop computer or on the fly with a Palm Pilot using their software.
See Appendix The table
for the percentage calculation to be withheld from net earnings is
reproduced below: Practice Tip:
If you represent the NPC, and his income is based on overtime, bonuses or
sales commissions, you may want to go back for the previous two years to
calculate an average, or obtain testimony from his boss as to what he is and
what he is not guaranteed to be paid. Do
not forget to deduct for the actual cost of providing health insurance or health
insurance reimbursement to the CP, as this deduction is obviously not provided
for in the chart. Multiple
Family Adjusted Guidelines -- % Of Net Resources
Number Of Children Before The Court
H.
Property/Debts/Spousal Support
The assignment of property or debts in Temporary Orders,
more than any other issue, telegraphs any potential agreement in the Final
Orders. It is important to note that, while a party may
be ordered to maintain certain levels of coverage or pay certain debts in a
temporary restraining order, subject to contempt, the order to pay such a
debt in final orders would no longer be subject to contempt.
The division of the assets necessarily follows what people are willing to
concede is either separate property or with which they are willing to part. Very
often this is based on the needs associated with maintaining a
household and taking care of children. If children are involved, a majority of the time, the
marital residence will be allocated to the Sole Managing Conservator
or primary parent. In addition, most of the necessary furniture and fixtures will be awarded
to the party to remain in the marital residence. The
payment of debts is more often than not going to depend on several factors-- in
whose name is the debt, for what purpose was it incurred,
whether it was in existence at the initial time of the
marriage, and the parties ability to pay the debt or maintain the status quo. This
includes any debt
associated with the marital residence. However,
in the case where there is a large disparity of earning power among the spouses,
there
will always be an issue of redistributing the wealth, one way or another. The
Code provides that
temporary spousal support may be awarded while a suit for divorce is pending, as
deemed necessary
and equitable, TFC
§6.502. While
this is only temporary, the Court may make provision for
future, post-decree spousal support only if: (1) the
spouse from whom maintenance is requested was convicted of or received deferred
adjudication for a criminal offense that also constitutes an act of family violence
under Title 4 and the offense occurred within two years of the filing of the suit
or while the suit was pending; or (2) the
duration of the marriage was 10 years or longer, the spouse seeking maintenance lacks sufficient property, including property distributed to the spouse
under this code, to provide for the spouse's minimum reasonable needs, as limited
by Section 8.005, and the spouse seeking
maintenance,. (1)
is
unable to support himself or herself through appropriate employment because
of an incapacitating physical or mental disability; (2)
is the custodian of a child who
requires substantial care and personal supervision
because a physical or mental disability makes it necessary, t mg
into
consideration the needs of the child, that the spouse not be employee
outside the home;
or
(3) clearly
lacks earning ability in the labor market adequate to provide support for the spouse's minimum
reasonable needs, as limited by Section 8.005. In
addition and effective September 1, 1999, a court may enforce a garnishment
order for spousal maintenance, as well as for the previously
authorized child support. Furthermore,
the factors that a Court may consider in determining maintenance can be
found in Texas Family Code §8.052.
Such maintenance shall be
limited to $2,500.00 or 20% of the paying spouse's average gross monthly
income, whichever is less; and continue for the shortest reasonable period
necessary or three years after the Order is rendered, whichever is
least. When spousal support is not
available by statute, many creative (and aggressive) attorneys will
seek
other ways to either transfer more money to their client or to compensate for
what one party may consider an unjust and unfair division, given
what's leftover after so many years. Some examples of these independent
torts include assault, intentional infliction of emotional distress and negligence.
The Supreme Court has made it clear that there is no independent cause of action
for fraud on the community or breach of fiduciary
duty, reasoning that a wronged spouse has an adequate remedy through the
"just and right" property division. See Schlueter V.
Schlueter, 975 S.W.2d 5S4 (Tex, 1998).
In addition, reimbursement claims are equitable measures that many attorneys
will utilize to get a bigger piece of the pie. VI.
Enforceability of the Temporary Order It
is important to remember that for temporary orders to be enforceable, they must
be ordered by
the Judge. Many parties will enter into a rule 11 agreement for temporary or
even final orders, without making sure they
are enforceable. While the
intricacies of obtaining
this assurance are beyond the scope of this paper, it should be noted that the
agreement should include the term
"Order
at the top; it should include
sufficient specificity of material terms to be enforced in law as well as in
contract (if it's an "Agreed Order"); and it should be
"Ordered" by the Judge on the record after
all signatures have been obtained by the parties and their respective attorneys.
Such material terms include amount of child support/attorneys fees due, date payment(s)
due, place payment(s) due, and any
other terms necessary to avoid ambiguity
in the order. Do not
file
a motion for
contempt if a party violates a rule 11
agreement that has not been Rendered or Ordered, as
they are not contemptible. The proper
remedy is a motion for sanctions. It should
be noted that while the award for
attorney's fees on final orders will be
a judgment, the award for interim attorney's fees are contemptible and should be
explained on the record as such,
regardless of which side you represent.
If the agreement is ordered
by the judge, the remedy to correct
non-entry of the typed Order is a Motion To Sign or Motion To
Enter. If
you only obtained a rule 11 agreement (for final orders), you will need to start
preparing your Motion For Summary
Judgment. VII.
Things Not to Do at Temporary Orders Hearing 1.
Do not go to court without attempting to confer with
opposing attorney or in some way attempting to narrow the issues. 2.
Do not put five witnesses on the stand, which repeatedly
say the exact same thing. 3.
Do not assume the case is going to settle if it is your
belief from what your client has told you and show up for a temporary orders
hearing unprepared. 4.
Do not bring up facts that are too remote to be relevant to
the placement of the temporary orders. 5.
Do not fail to focus on the issues before the court that
day and do not focus on issues that are not before the court. 6.
Do not argue over characterization problems or property
division because the court will be more concerned about the immediate status and
welfare of the individuals involved on a temporary basis. 7.
Do not go into court and request interim attorneys fees
if you do not have an account for the court to award the interim attorneys
fees. Additionally be well prepared
to show exactly why and how much interim attorneys fees will be necessary. 8.
Do not go into court and having your client confuse joint
managing conservatorship and joint custody.
It will be extremely embarrassing to ask for primary joint managing
conservator and have your client testify that she wants joint custody. 9.
Have your client and your witnesses prepared for a possible
delay of the first temporary orders hearing. Do not request psychological evaluations with a clear and
concise reason as to why you are asking for them.
This may throw a wrench into what might otherwise be a highly contested
issue. 10.
Do not be rude or arrogant to the other attorney.
Be an advocate for your client without being rude or unprofessional.
This will not impress the judge. VIII. Summary and Judicial Practice Tips The
first caveat should be FIND your client's WARTS.
Every prospective client has something you need to know before you get in
the courtroom or before beginning negotiations.
Ask your client for the very worst things his or her spouse is going to
say about your client. Ask him or
her questions you expect the other counsel to come in with and suggest HOW to
answer and still tell the truth. Make
certain you have your client prepared and all potential witnesses on standby for
a custody dispute. Never believe for a second that custody cannot become an
issue. Custody is often the most
important issue, and you can generally expect that whatever happens to your
client in Temporary Orders will be the result in a hearing on the merits. Know
the client's income and living expenses. Be
certain your client completes a sheet, preferably typed, regarding all living
expenses and debts, with the minimum monthly payments.
Have copies for opposing counsel and the Court.
Know the spouse's income. Be
certain to ask about bonuses, commissions, auto allowances, cost of health
insurance, etc. Type an exhibit
showing the gross income, allowable deductions, net income and what you believe
the guideline for child support should be.
If you get the Judge working from your figures, you are in the
winning seat. Remember, most
attorneys think the Judge has time to compute the net income and the percentage
of child support that should be paid. Most
of the time, the Judge's calculator is on the blink--if they can even find it. Try
to calculate the amount of income your clients will reasonably have after
considering child support, alimony or spousal support and THEN see what
they can realistically afford. Do
NOT agree to ANYTHING on Temporary Orders that you do not want to live with on
Final Orders. The sole exception to
this might be a house that your client cannot afford, but for custody reasons,
if it best to keep the child in the home with your client on a temporary basis. Make
sure your Original petition requests attorneys fees, reimbursement and
separate property claims. Most of
us forget to look at our live pleadings more than seven days prior to trial then
get them amended. Don't get
to trial only to find out your client had $100,000.00 in a bank account when
first married it's still there and you have no separate property pleadings.
"MALPRACTIVE MANOR" looms on the horizon. DON'T
assure your client that you will get interim fees and costs from their spouse
unless you are certain that there is a fund from which the judge can assess
these costs. Be sure you can show
the Judge from whence these funds will come-- i.e.
Stock account (see tax ramifications), checking, savings or money
market account. No Judge is going
to pull it out of income unless there is an abundance of money.
Of course, there never is in the throes of separation.
They are much more inclined to take care of the children than pay your
fees or costs. Normally,
your client will not show up with the documents that you are going to need for
the final agreement or trial. Make
certain your client brings you the parties' tax returns for the past several
years, W-2's, deeds, car titles, etc.. to the initial conference.
If you cannot obtain these through your client and you need them for the
Temporary Hearing, be certain to issue a Subpoena Duces Tecum to the other
spouse and announce "Ready" subject to your subpoena. You should NEVER keep the originals. Make certain your staff makes copies and return the
originals. Do this while the client
waits. Your client will always
swear that you kept the originals when they get lost in their move, so be
certain you can show them the copies and show them a copy of your office policy
in this regard. If you represent
the Respondent in a Temporary Hearing, remember time is of the essence.
As a matter of office practice, instruct your secretary to ask the client
to bring all of these documents. Give
your client the "Expense and Debit" sheet to complete and return to
your secretary within 24 hours. If
you allege fault in the breakup of the marriage (i.e. adultery, cruelty, etc.),
be sure that you can prove these allegations at trial.
Nothing frustrates a Judge quite as much as anticipating a reason why
he/she should make a disproportionate division or sock one of the parties for
extra sums of money to get the other spouse through some counseling, only to
find out your client was called a dirty name by the next-door neighbor and your
client's spouse didnt go next door and demand satisfaction with dueling
pistols at dawn. If
the estate of the parties is complicated, such as one involving a family
business, immediately involve experts to assist with evaluations.
Often income from a closely held business is difficult to determine, so
run, don't walk, to a CPA who can explain to the Court the 'true' income of the
other spouse. Remember "never
on Sunday" is the best rule you can operate under.
Never, never give tax advice. Many
divorces involve tax problems, and unless you have a special expertise in this
area, demand your client consult with a CPA or tax attorney. PLEASE
do not ask the Judge to limit or deny visitation for a child over the age of
three without bringing an expert to show why and how visitation should be
limited. If your client's lifestyle
and needs do not mesh with the Standard Possession Order, be ready to give the
Judge an alternative. DO IT IN WRITING so that a Judge can follow it and make a
ruling that does fit. If the child
is under three years of age, expect the Judge to give frequent but short periods
of visitation, absent abuse or danger. If
there is any possibility of physical violence, you should suggest supervised
visitation at either S.A. Kid's Exchange (334 W. Mistletoe, S. Central San
Antonio; 733-3349) to KidsShare (4245 Center Gate;
N.E. San Antonio; 946-8524), or some other appropriate exchange.
Both work on a sliding fee scale, according to income of the parties.
This will also provide you with an independent witness so you don't have
to leave the Judge to a swearing match trying to determine the true facts of how
an alternation occurred. Be
certain to check the Spousal Support statute, as spousal maintenance is now
eligible for withholding/garnishment. In
addition dont forget to tell your client that he or she must apply for a job,
otherwise, your client is OUT OF THE WATER under the statute.
The most important advice you can give your client is to KEEP THEIR MOUTH
SHUT!!! DO NOT VOLUNTEER
ANYTHING!!! LISTEN TO THE QUESTION
AND ANSWER ONLY WHAT IS ASKED UNLESS YOU ARE DOING THE ASKING. If
you and your client are conferring with the other counsel, tell your client his
or her kneecaps are in mortal danger if they say ANYTHING to their spouse or to
the other attorney without running it by you FIRST.
Do NOT talk to the spouse about settlement terms.
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