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A Texas divorce case is not always over when the judge signs the final divorce decree.  The decree sets forth the property division, but the parties must take action to achieve the division.  If party fails to surrender property, the other party may need to file a motion to enforce the property division in the decree.  A former husband recently challenged an enforcement order, arguing that the motion had not been filed timely and the claim was time-barred.

The couple divorced in 2012.  The wife moved for enforcement of the agreed divorce decree in 2016.  She also petitioned for breach of alimony contract.  The court held a bench trial and subsequently signed an enforcement order, ordering the husband to make the payments to satisfy the funds transfers required by the decree, to make the unpaid alimony payments, to provide health insurance for the children and reimburse the mother for the premiums she had paid, add the mother to the custodial accounts for the children, and pay the mother’s attorney’s fees.  The husband appealed.

The husband argued the portions of the order awarding funds to the wife were barred by the statute of limitations.  Section 9.003 of the Texas Family Code requires a suit to enforce division of tangible personal property to be filed within two years from the date the decree was signed or becomes final after appeal.

The wife argued that money was not “tangible property” to which the time bar applied.  The appeals court noted, however, that it had previously held funds did constitute tangible property and that decision was binding precedent.  The part of the enforcement order requiring the husband to pay the wife to enforce the division of tangible property was reversed.

The wife moved for en banc reconsideration, arguing the precedent was inconsistent with decisions from other Texas appeals courts and the Texas Supreme Court.  The en banc court noted that the briefs in the precedential case did not cite to authority on this issue and if they had, the court likely would have considered those other decisions.

The en banc court first looked at the Texas Supreme Court case, which held money and stock shares were “intangible” personal property for the purpose of taxation.  Another Texas Court of appeals also found that money was “not a ‘tangible chattel…”  Since this court’s previous decision, two other Texas appeals courts also found money is not “tangible personal property.”  There were similar holdings in other states.

After reviewing the other cases, the en banc court found money and stock shares are not tangible personal property under section 9.003. The two year statute of limitations therefore did not apply to bar the wife’s claim for enforcement.

The husband also argued the trial court erred in modifying the property division in the decree, but the en banc court found the order did not modify the property division.

The en banc court vacated the previous appeals court opinion and affirmed the trial court.

In this case, the statute of limitations did not apply. It would, however, bar enforcement for tangible personal property.  Property division should occur promptly after the divorce.  If your former spouse fails to transfer the property that has been awarded to you within a reasonable amount of time, you should talk to an experienced Texas divorce attorney to determine if you should take action to enforce the property division.  Call McClure Law Group at 214.692.8200 to schedule a consultation.

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When a respondent fails to answer a Texas divorce petition, the petitioner may seek a default judgment granting the divorce.  However, unlike in other types of cases, the unanswered allegations in a divorce petition are not deemed confessed.  The petitioner must present evidence that supports the material allegations.  If the trial court makes findings without sufficient supporting evidence, the non-participating party may have a right to appeal in certain circumstances, despite his or her failure to participate.

In a recent case, a husband filed a restricted appeal of a final divorce decree.  The husband did not answer the divorce petition.  Only the wife appeared and testified at the final hearing.  The court entered a divorce decree that designated conservatorship over the children, addressed visitation, ordered the husband to pay child support, and divided the community estate.  To succeed on a restricted appeal, the husband must show that he filed notice of the restricted appeal within six months of the judgment or order, he was party to the suit but did not participate in the hearing, and he did not file a timely post-judgment motion, request findings of fact and conclusion of law, or file notice of appeal within the required time frames.  Furthermore, he must also show that there is an error apparent on the record’s face.  The appeals court may therefore only consider evidence that was before the trial court.

The appeals court found the husband had met the requirements for the restricted appeal.  He had timely filed his restricted appeal.  He had not answered the petition or participated in the hearing.  Additionally he had not filed a post-judgment motion, request for findings and conclusions, or appeal.  Although a hearing had been held by the trial court, there was no evidence regarding the value of the marital estate, the income and debts of the parties, the children’s relationship with their parents, the children’s ages, or the children’s residences.  The appeals court found the trial court had made factually based decisions without supporting evidence.  The trial court made decisions relating to conservatorship and visitation.  It ordered the husband to pay child support.  The court also divided the community estate.  The appeals court therefore found there was error apparent on the face of the record.

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Usually, in a Texas divorce case, both parties know and agree that they were married.  In some cases, however, the parties may disagree as to whether there has been an informal marriage.  An informal marriage can be proven by showing that the couple agreed to be married, subsequently lived together in Texas as spouses, and represented themselves as married.  TEX. FAM. CODE ANN. § 2.401.  Texas courts have held that evidence that the parties held themselves out as married must be particularly convincing and be more than occasional references to each other as husband or wife.

A mother recently challenged a court’s finding that she had not been informally married to the father of her children.  The couple had two children together, one who was six and the other who was 21.  The mother petitioned for divorce, arguing that she and the father married on or about 1996.  In his answer, the father stated there was no existing marriage.

At the hearing, the mother testified that she believed she and the father had agreed to be informally married when they moved in together.  She said the father introduced her to his friends and family as his wife.  She admitted, however, that she always filed her taxes as single.  She also conceded that her name was not on the deed to the house, and it instead named the father and his father as the owners.

The mother’s oldest son testified he thought the couple was married because they had a relationship and two children together.  He testified that the father had introduced him as his wife’s son once.

The father testified that he lived with the mother more than 20 years.  They had two children.  He testified they had not agreed to be married, however, and the mother had not introduced him as her husband.  He testified that he stayed with her because his father told him to and he did not want a stepfather to raise his child.  He also testified that they had never filed a tax return together as a married couple.

The father’s father testified that the couple lived with him for three years. He said they did not have an agreement to be married and his son had represented the mother as his wife.  He also said the mother told him she was in charge because she did not have a husband and that she and the father did not have a commitment.

The trial judge expressed “great concerns” over the father’s credibility, but found the mother had not met the burden to show the couple agreed to be informally married.  The court therefore found the home they lived in to be the father’s separate property.

The mother appealed.  She pointed to the length of the relationship, cohabitation, and their children in common.  She also raised the issue of the trial court’s concerns about the father’s credibility.  The mother testified the father “always” introduced her as his wife, but she did not provide evidence that their reputation in the community was that of a married couple.  Her son had not provided sufficient evidence to support either an agreement or holding out as a married couple.  The father and his father both testified that the couple had not held themselves out as married.

There was conflicting testimony before the trial court.  The court had expressed concerns about the father’s credibility, but had not questioned the credibility of the father’s father.  It is the trial court’s role to determine the credibility of the evidence.

The mother had the burden of proving by a preponderance of the evidence that she and the father had an informal marriage.  To succeed on appeal, she would have to show that the trial court’s finding was against the great weight and preponderance of the evidence so as to be clearly wrong and unjust.  The trial court found she had not met this burden and affirmed the trial court’s order.

If you are facing a separation from a potential informal marriage, an experienced Texas family law attorney can help you protect your rights and assets.  Contact McClure Law Group at 214.692.8200 to discuss your case.

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When a court divides property in a Texas divorce, it presumes all property possessed by either spouse during the marriage or upon the divorce is community property.  Community property is all property acquired by other spouse during the marriage, other than separate property.  Separate property is either property owned or claimed by the spouse before the marriage or acquired by one spouse during the marriage by gift, devise, or descent.  Personal injury recoveries are separate property, but the community estate may recover for medical expenses , lost earning capacity, and other expenses the community estate incurred due to the injury.  The spouse asserting that the property is separate has the burden of showing which part of the settlement is separate property.  Language in a settlement agreement identifying the basis for the payment may displace the presumption of community property and create a new presumption that the funds are separate property.  In such cases, the spouse claiming the property is community property must provide evidence to rebut the presumption that it is separate.

A husband recently challenged the trial court’s property division, partly because it denied his reimbursement claim related to funds from a settlement.  He had settled a discrimination claim against his employer during the marriage.  The settlement included mental anguish, pain and suffering, and physical injuries, but did not include back pay or front pay.  He agreed to resign as part of the settlement.  He deposited the funds into a savings account.

Funds from the savings account were used to make a down payment on the couple’s home, the monthly mortgage, and the final payment.  The mortgage was in the husband’s name, but the deed was in both names.

The trial court awarded the house and household furnishings to the husband.  The husband argued the house was bought with his separate property and he should be reimbursed.  The court did not award him that reimbursement, and in fact awarded the wife $160,000 and granted her an owelty lien on the property.  The court also awarded her a disproportionate share of the community estate.  The husband appealed.

He argued that the trial court erred by not awarding him reimbursement for the payments for the home that were made with his separate property.  A party asserting property is separate must present clear and convincing evidence to overcome the presumption that the property is part of the community estate.  The party generally must be able to trace the property and present evidence of how and when it was obtained.

The husband argued the funds received for pain and anguish were separate property.  He argued that the language in the settlement agreement made clear that it did not include lost wages and instead was for mental anguish, pain and suffering, and similar injuries.

The appeals court noted that the settlement agreement also included a confidentiality provision.  The trial court cited the language in the confidentiality provision stating the settlement agreement could not be used as evidence in any proceeding other than one between the parties to the agreement.  The trial court therefore found that the other language in the settlement could not be used as evidence, and the appeals court agreed.  The husband therefore did not raise the presumption that the property was separate and still had to overcome the presumption that it was community property.

There was a statement from the bank showing that the net amount of the settlement was deposited, but the husband did not testify or present other evidence showing when the account was opened, how much was in the account when the couple married, or the other deposits and withdrawals.  The appeals court found he failed to trace the funds used to pay for the home back to separate property.

The appeals court found the trial court had not abused its discretion in denying the husband’s reimbursement claim.  Although the husband raised several other issues, the appeals court overruled them all and affirmed the trial court.

In this case, it appears the funds in question were of a type that is generally separate property.  The settlement agreement identified the claims being settled, and they all would have resulted in separate property.  However, due to the confidentiality provision of the settlement agreement, the court would not consider it.  The issue here was not that the husband was wrong in characterizing the property as separate, but that he was unable to prove he was correct.  If you are facing a high asset divorce, the experienced Texas divorce attorneys at McClure Law Group can help you identify the proof you need to support your case.  Please call 214.692.8200 for a consultation.

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Property division in a Texas divorce must be just and right.  The property division may be “just and right” in a case where one party does not participate, but the court must have sufficient information to use its discretion in dividing the property fairly.  A spouse recently challenged the property division following a proceeding in which he did not participate.

One spouse petitioned for divorce in July 2017, alleging insupportability, which is the “no fault” ground for divorce in Texas.  He alleged, however, that the respondent had committed fraud on the estate and asked the court to reconstitute the community estate.  He also asked the court to confirm certain property as his separate property.

He claimed the respondent was a nonresident of Texas, but the marital residence had most recently been in Texas and he had filed the petition within two years of the date the marital residence ended (which would allow for Texas to have personal jurisdiction over the nonresident respondent).  The process server swore in an affidavit that the respondent had been served with the petition in Miami, Florida.

The petitioner listed a home in Florida as community property with a fair market value of $202,066 and secured debt of $231,000.  He proposed the Florida property, a bank account worth $9000, $2000 worth of clothing, and a $2000 401k be awarded to him.  He proposed that $5,000 worth of furniture, a $2,000 television, a bicycle, $200 worth of clothing and a $50,000 checking account be awarded to the respondent.  The petitioner listed a second Florida property and a Florida locksmith business as his own separate property.  The petitioner’s inventory did not include account numbers or documentation supporting the claimed values.

The respondent did not file a written response or appear at trial.  The petitioner testified he thought the proposed property allocation was fair to both parties.

The trial court questioned the petitioner regarding the property.  The petitioner testified he had moved the locksmith business to Houston and that he had it before the marriage.  The court awarded the petitioner the home in Florida, the personal property and cash in his possession, and his personal retirement accounts.  The court awarded the respondent the personal property and cash in his possession and his own personal retirement accounts.  The court ordered that each party would be responsible for debts he incurred after the date of the petition and any debts or taxes to become due on the real and personal property awarded to him, unless otherwise stated in the decree.  The decree confirmed the locksmith business and the Florida property where the business had been located were the petitioner’s separate property.

The respondent filed a restricted appeal.  To succeed on a restricted appeal, the appellant must show he filed notice within six months of the judgment, was party to the underlying suit, did not participate in the hearing or file post judgment motions, and that error was apparent on the face of the record.  The only element at issue here was whether there was an error on the face of the record.

All of the papers on file in the appeal constitute the “face of the record.” In a divorce case, a defendant’s failure to appear is only an admission as to allegations related to residence and domicile.

The respondent argued that the Texas court did not have personal jurisdiction over him because he was a Florida resident.  The petitioner had alleged in his pleadings and testified that the jurisdiction requirements were met.  The appeals court found that there was nothing on the face of the record contradicting the petitioner’s allegations and testimony, and therefore overruled this issue.  The appeals court also rejected the respondent’s argument he had not been properly served for the same reason.

The respondent also argued the trial court abused its discretion by awarding the petitioner all of the real property and by confirming separate property without clear and convincing evidence it was not community property.  Although a trial court has broad discretion in dividing community property, it needs sufficient information to do so in a “just and right” manner.  In reviewing the sufficiency of the evidence for abuse of discretion, the appeals court must consider whether there was sufficient information before the court to allow it to exercise its discretion and whether the court erred in applying its discretion.  The appeals court should reverse the finding only if it is “clearly wrong and manifestly unjust” due to the lack of supporting evidence.

There is a presumption that property possessed by either spouse during the marriage is community property unless there is clear and convincing evidence otherwise.  The appeals court found the evidence was insufficient to support the division of the estate and confirmation of separate property.  The only evidence was the inventory submitted by the petitioner and his testimony.  The appeals court found the inventory was conclusory and did not fully identify the assets and property.  It did not include account numbers or any evidence supporting the values the petitioner assigned to the assets.

The petitioner argued his testimony regarding the separate property was uncontradicted and sufficient to establish the property was his separate property.  The testimony regarding this property occurred when the court referenced the business and the Houston address, and asked by what means “that” was the petitioner’s separate property.  The petitioner said, “It’s before I got married.”  The appeals court found this testimony did not clearly identify which assets were his before the marriage or trace the relationship between the business, the Florida business property, and the Houston address.  The appeals court reversed the trial court’s judgment and remanded.

Although the appeals court found in favor of the respondent regarding the property division in this case, the best way to protect your rights and assets in a divorce is to properly respond and participate in the case.  If you are facing divorce, an experienced Texas divorce attorney can help you through the process.  Call McClure Law Group at 214.692.820 to schedule an appointment.

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Property in a Texas divorce must be divided in a “just and right” manner.  The trial court has broad discretion in dividing the estate.  To successfully challenge a property division, a party must show that it was so unjust as to constitute an abuse of the trial court’s discretion.

A husband recently challenged the property division in his divorce. The husband appealed the trial court’s ruling, arguing it erred in awarding the wife what he claimed was “75% of the Community Estate.” He argued that the court had awarded her 75% of the community estate by awarding her the home the couple had lived in for most of their marriage and the surrounding property.  He also argued the court had improperly characterized real estate owned by his son as community property. Additionally, he argued the court had not considered that community work and assets had been used to enhance the wife’s separate property, that the wife damaged the business awarded to him, that she removed funds from community bank accounts, and committed adultery and domestic violence.

Fault

The appeals court first addressed the issue of fault.  The trial court had granted a no-fault divorce. The appeals court noted that the alleged domestic violence and adultery had happened several years before the separation, and the trial court could have reasonably found they were not relevant to the property division.

The Original Facility

The couple had run three assisted living facilities.  The husband had testified that the original business and the real property had been his separate property.  The wife argued, however, that she had managed that facility and the business was community property.  The trial court found the property where the original facility was located was the husband’s separate property.  The court also awarded him the original business.

The Second Facility

The second facility was operated in a house that was the wife’s separate property.  The husband testified he paid $40,000 from the original business’s account to renovate this house, but did not know how much the house was worth.  The business leased the house from the wife, with the payments paying for the renovations.  Residents were moved from the original facility, but the second facility was ultimately closed after about two years.

The wife claimed the renovations did not enhance the property value because they were done improperly.  She said the additional space was unusable and she had to close it off.

The husband testified that the couple had been in a fight in 2005 that resulted in him being arrested and going to jail.  He testified that the wife and her son moved the residents out of the second facility and left them and their personal property in the yard.  He alleged she did this with the knowledge that moving the residents was a violation of state-requirements.  The wife admitted to moving the residents, but denied leaving them and their things in the yard.  She claimed she moved them out because she needed somewhere to live after the fight.  There was, however, a rental agreement showing that she had leased the property in September 2005.  The husband claimed the wife did not deposit the funds from the lease into family accounts and that the property earned more as an assisted living facility.

The state revoked the second facility’s license due to the unauthorized move of the residents. The state alleged the residents of both the original facility and the second facility were in “imminent threat [and] danger.” The husband requested reimbursement of the nearly $150,000 the original business had spent to keep the licenses.  He was ultimately able to keep both licenses, but the state put a vendor hold on the businesses that resulted in the loss of several resident contracts.

The trial court found the property where the second facility had been located was the wife’s separate property.

The appeals court found the trial court could have reasonably believed the wife’s testimony that the addition and renovations actually decreased the property value.  Furthermore, the trial court could have reasonably believed that any financial damage the wife caused to the business operations in moving the residents was an innocent mistake.

The Third Facility

The third facility was operated in a home allegedly owned by the husband’s son.  The couple were guarantors of the mortgage on the property.  The business leased the property and the husband’s son agreed to pay the mortgage and taxes.  The wife, however, denied the husband’s son owned the home, and the Divorce Inventory Summary Sheet prepared by the husband identified the house as community property.  There was no deed in the record showing ownership of the property.  The trial court awarded this property and the business to the husband.

The appeals court found the trial court reasonably could have believed the property was a community asset and the husband had failed to rebut the presumption that it was community property.

Removal of Community Funds

The appeals court found the trial court could reasonably have believed the $30,000 the wife removed from the community account was offset by the wife having to pay her own attorney fees and costs.  Additionally, the appeals court noted that there was evidence that both parties had placed substantial amounts of community funds in noncommunity accounts throughout the marriage.  The appeals court found that this evidence gave the trial court reasonable grounds to deny reimbursement to either party.

Conclusion

The appeals court found there was a reasonable basis to presume the property division was just and equitable.  The husband failed to demonstrate that the division was so unjust as to be an abuse of the trial court’s discretion.  The appeals court affirmed the decree.

Legal Help

If you are facing divorce, an experienced Texas high-asset divorce attorney can help you protect your rights and assets.  Call McClure Law Group at 214.692.820 to set up a consultation.

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In a Texas divorce case, failure to follow the required procedures can result in the loss of property.  Parties should take care to identify all of the property that needs to be divided.  Additionally, if the court fails to address certain property in its findings, then the party must follow the appropriate procedures or may risk waiving that issue, as occurred in a recent case.

The parties married in 2007 and the husband filed for divorce in 2014.  He had been in the dairy business for many years and owned several properties at the time of the marriage.  The dairy sold milk and the court entered a temporary order granting the wife the proceeds from the “milk store” instead of spousal support.  She received a total of about $27,000 while the divorce was pending.  The wife agreed the husband bought some of the properties, including the dairy, before the marriage.

The wife appealed the property division.  She sought reimbursement for half of the value of taxes the community estate allegedly paid for the husband’s separate property during the marriage, the value of loans allegedly paid by the community to acquire goods and improvements for the dairy during the marriage, and the value of her separate property 401k used to improve the dairy.

The trial court found the wife was owed $33,024.75 to equalize the division of property and resolve her claims for reimbursement.  The court only found in favor of the wife for the 401k reimbursement, totaling $24,765.  The appeals court noted that the trial court awarded the wife slightly more than she had sought regarding the 401k reimbursement.

The wife argued that the trial court’s findings of fact did not address her other claims for reimbursement, but the appeals court noted she did not request the court make additional findings of fact.  After the trial court files its original findings of fact and conclusions of law, a party may request the court make specified additional or amended findings or conclusions.  If the party fails to timely make such a request, then it is deemed to have waived the right to complain about the court’s failure to enter additional findings.  The appeals court therefore found the wife had waived her other claims for reimbursement.

The wife also challenged the characterization of some of the property.  In its findings of fact, the trial court listed nineteen items or categories of property acquired during the marriage.  The wife argued the finding did not include all of the personal community property.  She also argued there were two tractors and some milking equipment that had not been awarded to either of the parties.  The husband pointed out that the finding was not intended to be an exhaustive list, but was instead a list of items the wife requested the court award to her.  Indeed, the court awarded all but two of the items in that list to the wife.  The appeals court again found the wife waived her complaint regarding the finding because she had not requested the trial court make an additional finding setting out all of the community property.

The wife also argued the property division was manifestly unjust and unfair.  The trial court noted it considered that the husband had provided private residences for his wife’s adult children.  The trial court awarded the wife most of the personal property she requested, for a value of more than $40,000.  The trial court also awarded her one of the reimbursement claims and a sum to equalize the division of the estate.  The wife was awarded a total of $75,274.75 for her division of the community property and her reimbursement claim.

The trial court found the community property awarded to the husband and to the benefit of his separate property was valued at $108,365, but after the deduction of the judgment awarded to the wife, the husband’s total community property award was $75,340.25.  The appeals court found the trial court had made an equal division of the property.

In this case, the wife’s failure to request additional findings resulted in a waiver of those issues.  If you are facing a divorce, an experienced Texas family law attorney can help you wade through the complex procedures.  Call McClure Law Group at 214.692.8200.

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Domicile is an important legal concept because it establishes where a person has certain legal rights and obligations.  A Texas divorce suit requires a party to have been domiciled in Texas for the preceding six-month period and a resident of the county where the suit was filed for the preceding 90-day period.  TEX. FAM. CODE ANN. § 6.301.  Domicile is the place a person intends to establish a permanent home. To establish domicile, the person must also act in execution of the intent.  For most people, domicile is fairly easy to identify, but it can be more complicated for members of the military.

The wife of a member of the Air Force recently challenged jurisdiction of a Texas divorce proceeding.  According to the appeals court’s opinion, the couple married in Texas in 2003. The husband identified Kendall County, Texas as his home of record.  Both parties testified that they and the children had lived in North Carolina continuously for the previous six years.  The wife filed for legal separation in North Carolina, and the husband subsequently filed for divorce in Kendall County, Texas.

The wife argued Texas did not have subject-matter jurisdiction.  The trial court dismissed the petition for divorce, finding Texas was not the children’s home state and they did not have significant contacts with Texas.  The trial court also found the father was not a resident of Kendall County, Texas.  The trial court ultimately concluded North Carolina was the more convenient forum and more suitable for hearing both the custody and the divorce.  The husband appealed.  The appeals court identified two separate issues in this case: the divorce and the custody.

Divorce Jurisdiction

Although the parties lived in North Carolina during the relevant period, the husband’s status in the military requires further inquiry.  A member of the military does not change domiciles just because he or she is stationed in a new location.  His or her domicile remains what it was when he or she entered the military, unless he or she clearly intended to change domicile.  The appeals court did not find an “unequivocal intention to change domicile.”  The husband testified he was a resident of Kendall County when he joined the Air Force and he had not established a permanent home elsewhere. He intended to return when he retired.  He maintained Texas voter registration and a Texas driver’s license.  The record supported a finding that the husband was a Texas domiciliary.  Under the Texas Family Code, time a Texas domiciliary spends outside the state or county of residence while serving in the military is considered residence in Texas and the county of residence.  The appeals court therefore found the husband could maintain his divorce proceeding in Kendall County.

Custody Jurisdiction

Texas has adopted the Uniform Child Custody Jurisdiction and Enforcement Act (“UCCJEA”), which governs jurisdiction of child custody cases.  A Texas court only has jurisdiction to make an initial custody determination: 1) if Texas is the child’s home state when the proceeding commenced or was the child’s home state within 6 months before commencement and the child is absent from the state, but a parent or acting parent still lives in Texas;  2) if another state’s court does not have “home state” jurisdiction or the court that does have home state jurisdiction declines to exercise it because Texas is the more appropriate forum; or 3) all courts with jurisdiction have declined it on the ground Texas is the more appropriate forum.  A child’s “home state” is the state where he or she lived with a parent or acting parent for the six months preceding the commencement of the custody proceeding.

The father did not submit the affidavit required by the Family Code, but the mother filed one indicating the children lived in North Carolina since they were born.  Thus, based on the only evidence available, North Carolina was the children’s home state.

There was no indication that a North Carolina court had declined jurisdiction.  The appeals court found the Kendall County court did not have subject matter jurisdiction over the custody case.

The husband argued Kendall County had jurisdiction pursuant the statute which provides that time spent by a Texas domiciliary outside the state while in the service of the armed forces is considered residence in Texas and the county of residence.  The appeals court noted, however, that the UCCJEA provides that it is the “exclusive jurisdictional basis” for custody cases, and that the UCCJEA controls in the event of a conflict with other statutes.

Declining Jurisdiction

The appeals court also found no error in the trial court’s decision to decline jurisdiction over the divorce.  A trial court may retain jurisdiction over a divorce when it does not have jurisdiction for the custody proceeding, but it does not have to do so.  Here, the couple had not lived in Texas for many years.  The husband intends to remain in North Carolina until his retirement in 2019.  Most of the property in dispute is also in North Carolina.  Additionally, the wife had filed separation proceedings in North Carolina before the husband petitioned for divorce in Texas.

The appeals court affirmed the portion of the trial court’s order granting the mother’s plea to the jurisdiction regarding custody and her request that the trial court decline jurisdiction over the divorce.

Seek Skilled Legal Representation

Family law issues involving members of the military or multiple jurisdictions can be very complex.  If you are facing such issues, an experienced Texas divorce attorney can assist you through the process.  Call McClure Law Group at 214.692.820 to schedule a consultation.

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The Fifth Amendment to the U.S. Constitution prevents anyone from being “compelled in any criminal case to be a witness against himself.” A party in a Texas civil case can “plead the Fifth” during discovery to avoid answering questions in a deposition if the party reasonably believes the answer might incriminate him in a criminal case. A plaintiff cannot, however, use the Fifth Amendment to prevent the other party from obtaining information they need to prepare a defense.  A trial court can impose sanctions when a party uses the Fifth Amendment privilege offensively, but the court must consider whether remedial steps could solve the issue.  The court may also impose sanctions when a party wrongfully invokes the Fifth Amendment.

In a recent Texas divorce case, the husband faced serious sanctions after raising the Fifth Amendment during his deposition.  In June 2015, the wife filed for divorce and the husband filed a counterpetition.  The wife alleged the husband had assaulted her and committed adultery.  She also alleged he hid community assets, wrote fraudulent checks to third parties and cashed them himself, and conveyed community property to his sister.  The husband alleged the wife also secreted assets and filed false charges against him for family violence assault.

When the wife’s attorney sent notice of the date of the husband’s deposition, his attorney responded it would be “futile” because the husband’s criminal attorney was likely to advise him to “plead the fifth” due to the pending criminal charges.  During deposition, the husband refused to answer many questions on the grounds his answer might incriminate him in the pending criminal case, including some that would not be covered by the Fifth Amendment privilege.  He repeatedly asserted his Fifth Amendment privilege regarding “anything that has to do with financials…”  He refused to answer questions regarding his income, assets, and a list of property.  He also refused to identify documents.  There was no record of either the wife’s or the husband’s attorney explaining to him why he could not invoke his Fifth Amendment privilege in response to many of the questions asked.

The wife moved for sanctions against the husband for improperly invoking the Fifth Amendment to block discovery.  She asked the court to strike his pleadings, enter default judgment, bar his claims for affirmative relief, and prohibit him from presenting evidence at trial and bar his opposition on the issues where he invoked the Fifth Amendment.

In the hearing, the husband’s attorney presented her letters to the wife’s attorney stating the husband had been advised to plead the Fifth Amendment.  The attorney argued he was not trying to avoid discovery, but was concerned the wife might bring additional criminal charges against him.

The trial court found the husband invoked the privilege to abuse the discovery process.  The trial court prohibited the husband from testifying in the final hearing and from introducing evidence on his affirmative request for relief.

The wife then moved for partial summary judgment.  The husband responded with an affidavit stating he was acquitted of the criminal charges and had not invoked the privilege to thwart discovery.  The court granted the wife’s motions to strike his petition and affidavit and for partial summary judgment.  The husband appealed.

The appeals court found the sanctions issued by the trial court were “death penalty sanctions.” A death penalty sanction is when one adjudicates the claim without allowing presentation of the merits.  Death penalty sanctions are only appropriate in severe cases where the “party’s conduct justifies a presumption that its claims or defenses lack merit.”  Although the trial court has broad discretion in issuing sanctions, sanctions must be just and in accordance with due process.  The Texas Supreme Court is only just when there is a direct relationship between the offensive conduct and the sanction.  Sanctions cannot be excessive.  Furthermore, sanctions should not be imposed on the party if the conduct was attributable solely to counsel.

The husband’s divorce attorney was present at his deposition.  She had warned the wife’s attorney that he had been instructed to invoke the Fifth Amendment privilege.  The husband invoked the privilege during questions that were not subject to the Fifth Amendment, but stated he was doing so on advice of counsel.  The appeals court found the trial court had not inquired into whether the party or his attorney was responsible for his belief he could raise the privilege.  Therefore, there was no evidence that the sanctions were imposed on the offender.

A trial court must consider whether lesser sanctions are appropriate before issuing death penalty sanctions.  In most cases, the trial court should actually try lesser sanctions before going so far as to strike pleadings.  If the court does not first try lesser sanctions, it must at least clearly explain on the record why lesser sanctions could not promote compliance.

The appeals court found that the wife had not sought to compel the answers to questions where the husband improperly raised the Fifth Amendment.  The husband was not told that his pleadings could be stricken and he could be prohibited from presenting evidence in defense of the wife’s petition.  Furthermore, there was no record the trial court had analyzed available sanctions and explained why the sanctions it imposed were appropriate.  The trial court here had not tested lesser sanctions or explained why they would be inappropriate.

The appeals court reversed the trial court’s judgment, deleted all sanctions against the husband, and remanded the case.

As seen in this case, a trial court cannot impose sanctions so severe they prevent a party from presenting a defense without trying lesser sanctions or documenting why lesser sanctions would not work.  Such serious sanctions in a divorce case can have significant consequences, especially as to property distribution.  If you are facing divorce, you need an experienced Texas divorce attorney fighting for you.  Contact McClure Law Group at 214.692.820 to discuss your case.

More Blog Posts:

Death Penalty Sanctions in a Texas Divorce

Texas Contempt Findings for Violations of Morality Clause

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Texas recognizes common law marriages. To have a common law marriage, the parties must have agreed to be married, must have lived together as spouses after that agreement, and presented themselves as married.  When most people think of common law marriages, they consider couples who were never formally married.  However, in a recent case, a man sought a Texas divorce from his ex-wife, alleging there was a common law marriage after their original divorce.

The parties married in 2000 and divorced in 2005.  They lived together until at least 2006 and had children together in 2006 and 2007. They worked together.  Although they agreed that the relationship changed in 2012, they did not agree as to what happened later.  The husband claimed they moved back in together by the end of 2013 and continued their relationship until late 2014.

The husband filed for divorce in 2015. The wife moved for summary judgment on the grounds that they were not married.  She argued they did not meet the requirements of a common law marriage. She offered affidavits the parties signed in 2013 indicating they were not married, did not live together, and had not held themselves out as married.  In her deposition, she had denied living with the husband.  She also pointed out the husband was unable identify the exact date of an agreement to be married.  She also relied on documents in which the husband indicated he was divorced and not married, including a bankruptcy petition filed under oath.

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