North Texas Family Law Blog : Dallas Divorce Lawyer : Dallas Divorce Attorney : VernerBrumley PC : Serving Dallas, Plano, Fort Worth, Texas

Many courts have adopted "standing orders." These order incorporated the injunctions regarding divorces and suits affecting the parent child relationship in the Texas Family Code. The Dallas County Family District Courts amended their standing order effective April 1, 2013. The amended Standing Orders are: 

No party to this lawsuit has requested this order. Rather, this order is a standing order of the Dallas County District Courts that applies in every divorce suit and every suit affecting the parent–child relationship filed in Dallas County. The District Courts of Dallas County giving preference to family law matters have adopted this order because the parties, their children and the family pets should be protected and their property preserved while the lawsuit is pending before the court.
Therefore, it is ORDERED:

1. NO DISRUPTION OF CHILDREN. Both parties are ORDERED to refrain from doing the following acts concerning any children who are subjects of this case:
1.1 Removing the children from the State of Texas, acting directly or in concert with others, without the written agreement of both parties or an order of this Court.
1.2 Disrupting or withdrawing the children from the school or day–care facility where the children are presently enrolled, without the written agreement of both parents or an order of this Court.
1.3 Hiding or secreting the children from the other parent or changing the children's current place of abode, without the written agreement of both parents or an order of this Court.
1.4 Disturbing the peace of the children.
1.5 Making disparaging remarks regarding the other party in the presence or within the hearing of the children.

2. PROTECTION OF FAMILY PETS OR COMPANION ANIMALS. Both parties are ORDERED to refrain from harming, threatening, interfering with the care, custody, or control of a pet or companion animal, that is possessed by a person protected by this order or by a member of the family or household of a person protected by this order.

3. CONDUCT OF THE PARTIES DURING THE CASE. Both parties are ORDERED to refrain from doing the following acts:
3.1 Using vulgar, profane, obscene, or indecent language, or a coarse or offensive manner to communicate with the other party, whether in person, by telephone, or in writing.
3.2 Threatening the other party in person, by telephone, or in writing to take unlawful action against any person.
3.3 Placing one or more telephone calls, at an unreasonable hour, in an offensive or repetitious manner, without a legitimate purpose of communication, or anonymously.
3.4 intentionally, knowingly or recklessly causing bodily injury to the other party or to a child of either party.
3.5 Threatening the other party or a child of either party with imminent bodily injury.

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This is the 12th of a serialization of Janet P. Brumley's book about Collaborative law, called Divorce Without Disaster. This post is Chapter 2, part 4 of the book.

When litigants go to the courthouse for a hearing or an attorney's office for a deposition or witness statement, proceedings are usually on the record. People who value privacy are suddenly in an open courtroom discussing their sex lives, their finances and their taxes. This is all recorded by a court reporter and saved for posterity. Inventories and appraisements listing all the parties' assets and liabilities (complete with account numbers) are routinely filed with the district clerk of their county of residence.

Parties who resolve their divorces with collaborative law do so behind closed doors in their attorneys' offices. The law prohibits attorneys from disclosing anything they have heard, except in cases where someone declares an intent to commit a crime or poses a continuing threat of child abuse.

"Collaborative law is a cooperative effort, not a public forum," observes Mary Jo McCurley, a partner in the Dallas firm of McCurley Orsinger McCurley Nelson & Downing L.L.P. and former chair of the family law section of the State Bar of Texas. "With collaborative law, you can settle the case with a scalpel rather than a hatchet, which is what you get in court. Because the parties have crafted the agreement themselves, they own it more than if a judge has told them what to do. They're more likely to follow the terms of the agreement."

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Collaborative divorce and cooperative divorce are processes by which parties may attempt to resolve their divorce cases by use of negotiation and use of professionals. They are alike in that the processes both attempt to avoid the courthouse with its incidental court appearances, formal discovery and the arbitrary deadlines of the statutes and rules. However, collaborative law and cooperative law differ in important respects.

Collaborative law is codified into the Texas Family Code in Chapter 15. The statute requires that a collaborative family law participation agreement be signed and that agreement must:

1. Be in a record;
2. Be signed by the parties;
3. State the parties' intent to resolve a collaborative family law matter through a collaborative family law process under this chapter;
4. Describe the nature and scope of the collaborative family law matter;
5. Identify the collaborative lawyer who represents each party in the collaborative family law process;
6. Contain a statement by each collaborative lawyer confirming the lawyer's representation of a party in the collaborative family law process.
7. Include provisions for suspending tribunal intervention in the collaborative family law matter while the parties are using the collaborative family law process; and
8. Unless otherwise agreed in writing, jointly engage any professionals, experts, or advisors serving in a neutral capacity.

The statute further allows the parties to include other provisions in a collaborative family law participation agreement which are not inconsistent with this chapter.

According to the statute, a collaborative family law process is concluded by:

1. Resolution of all issues;
2. Resolution of a part of a collaborative family law matter; or
3. Termination of the process under other specified terms in the statute or which have been agreed by the parties.

Generally speaking, a collaborative family law process terminates according to the terms of statute by the giving of notice by one party or when one party seeks court intervention.

When a party discharges a collaborative lawyer or a collaborative lawyer withdraws from further representation of a party that attorney may not continue to represent or advise that party.

The parties must comply with some reporting deadlines while the case is pending, but, upon compliance with those reporting deadlines, the court cannot intervene with settings and discovery deadlines until after the second anniversary of the date the divorce case was filed.

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The Agreed Decree of Divorce is a final decree that contains the terms to which both parties have given their consent. The Decree is both a "judgment" of the court, and a contract between the parties. Some terms can be enforced by contempt, some terms can be enforced as a breach of contract. Parties can give their consent by simply signing the final decree, in which case one party will "prove up" the decree before the judge who may approve the agreements and enter the order. Or the Decree can be based upon some form of a settlement agreement, which has been incorporated into the Decree.

If the decree is based upon a settlement agreement, it is important to understand the different variations of "agreements." Generally, once an agreement is reached regarding the terms of the decree, one party will want to enforce that agreement in the event the other party changes their mind. Understanding the nature of the underlying agreement is important to understand the "finality" of that agreement.

 The Rule 11 Agreement

 The Rule 11 Agreement is an agreement that conforms with the requirements of Texas Rules of Civil Procedure (TRCP) Rule 11, which states:

Unless otherwise provided in these rules, no agreement between attorneys or parties touching any suit pending will be enforced unless it be in writing, signed and filed with the papers as part of the record, or unless it be made in open court and entered of record.

Rule 11 Agreements are used to settle all types of issues between the parties, from discovery matters to final property divisions. They are contractual in nature, and can be enforced as a contract – provided they satisfy the requirements of Rule 11. When incorporating the terms of a Rule 11 Agreement into a final decree of divorce, specify that the parties intend for the decree to supersede the terms of the Rule 11 agreement. That way, if there is a conflict between the two documents, it is clear that the provisions of the decree trump the Rule 11 agreement. Otherwise, the settlement agreement remains enforceable as a contract even if its terms are not incorporated into the judgment. Compania Financiara Libano, S.A. v. Simmons, 53 S.W.3d 365 (Tex. 2001). The terms of the Rule 11 Agreement also remain enforceable as a contract, even if a party withdraws his or her consent. Boyd v. Boyd, 67 SW3d 398 (Tex. App. - Fort Worth 2002, no pet).

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The starting point in the division of a marital estate is the characterization of the parties' property as separate or community. Allen v. Allen, 704 S.W.2d 600, 603 (Tex. App. – Fort Worth 1986, no writ). Property acquires its characterization at the inception of title. Henry S. Miller Co. v. Evans, 452 S.W.2d 426, 430 (Tex. 1970). Property owned by a spouse before the marriage is separate property. Tex. Const. art. XVI, § 15; Tex. Fam. Code Ann. § 3.001(1) (West 2006). Property possessed by the spouses upon the dissolution of the marriage is presumed to be community property. Tex. Fam. Code Ann. § 3.003(a) (West 2006); Estate of Hanau v. Hanau, 730 S.W.2d 663, 667 (Tex. 1987). A party claiming property as separate has the burden to overcome that presumption by clear and convincing evidence. Tex. Fam. Code Ann. § 3.003(b); Harris v. Harris, 765 S.W.2d 798, 802 (Tex. App. – Houston [14th Dist.] 1989, writ denied). "Clear and convincing" evidence means the measure or degree of proof that will produce in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established. Tex. Fam. Code Ann. § 101.007(b); In re C.H., 89 S.W.3d 17, 25 (Tex. 2002).

To overcome the presumption of community, a spouse must trace and clearly identify the property claimed as separate. Hanau, 730 S.W.2d at 667; Cockerham v. Cockerham, 527 S.W.2d 162, 167 (Tex. 1975). If separate and community property have been so commingled as to defy segregation and identification, the statutory presumption prevails. Hanau, 730 S.W.2d at 667 (citing Tarver v. Tarver, 394 S.W.2d 780 (Tex. 1965)). When separate property has not been commingled or its identity can be traced, however, the statutory presumption is dispelled. Harris, 765 S.W.2d at 802.

With these principles in mind, we turn to the characterization of a spouse's partnership interest and the distributions made from a Texas Family Limited Partnership ("FLP"). The Supreme Court has determined that the only partnership–related property a trial court can award upon dissolution of a partner's marriage is the partnership interest, not the partnership property. McKnight v. McKnight, 543 S.W.2d 863, 867–68 (Tex. 1976). A partnership "interest" is a partner's right to receive his share of the profits and losses and to receive distributions. Tex. Bus. Orgs. Code Ann. §1.002(68) (West Pamph. 2009). "Partnership property" is not property of the individual partners; a partner's "interest" does include an ownership interest in partnership property. Id. §152.101 (West Pamph. 2009); Marshall v. Marshall, 735 S.W.2d 587, 594 (Tex. App. – Dallas 1987, writ ref'd n.r.e.). Nor does a partner retain an ownership interest in his capital contribution; rather, the contribution becomes partnership property. Lifshutz v. Lifshutz, 199 S.W.3d 9, 26 (Tex. App. – San Antonio 2006, pet. denied). Thus, a partner's right to receive his share of the profits is the only partnership right subject to characterization. Marshall, 735 S.W.2d at 594.

Partnership earnings are owned by the partnership prior to distribution to the partners and cannot be characterized as either separate or community property. Cleaver v. Cleaver, 935 S.W.2d 491, 494 (Tex. App. – Tyler 1996, no writ). "[A] partnership can be an effective means of preserving the separate property character of assets contributed to the partnership and the undistributed income thereon." Lifshutz, 199 S.W.3d at 26 (citation omitted) (emphasis added). The partner's spouse has no interest in the assets of a partnership until they are actually distributed. Id. The portion of partnership income retained in the capital account is therefore partnership property, and as such, is neither the separate nor community property of either party. See Cleaver, 935 S.W.2d at 494. In fact, even the increase in the partnership interest remains partnership property and would not constitute property acquired after marriage until distributed. See Lifshutz, 199 S.W.3d at 26; Cleaver, 935 S.W.2d at 494.

The Marshall case, Marshall v. Marshall, 735 S.W.2d 587 (Tex. App. – Dallas 1987, rehearing denied), remains the leading authority that the distributions from the limited partnership are community property. In Marshall, the husband owned a separate property interest in a partnership. The partnership engaged in oil and gas exploration and production. Id. at 594. The partnership acquired all of its oil and gas leases before the marriage. Id. The partnership disbursed $542,315.72 to the husband during the marriage. Id. The husband maintained that only the $22,400.00 paid as salary was community property. Id. The court rejected the husband's argument and held that the distributions of partnership income or profits were community property. Id. at 595. So, if the partner receives her share of the profits during marriage, those profits are also community property, regardless of whether the partner's interest in the partnership is separate or community in nature. Even if the distribution was of an asset or cash, and the distribution was from the capital account, Marshall states that the "mutation of a partner's separate contribution" does not apply and the distributions will be characterized as community property because the partnership becomes the owner of the capital contribution. As such, in this case, all of the partnership distributions that a spouse received during the marriage would be considered community property.

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Frequently, Facebook, Instagram, Twitter and other social media sites provide a plethora of incriminating evidence that can be used in divorces or custody proceedings. Whether it's a picture of the teenage child using drugs, the wife caught in a compromising situation, or the identification of valuable assets, social media has made obtaining damaging information readily accessible and inexpensive. The challenge is getting that evidence admitted in a court of law.

If the evidence is obtained from the opposing party's social media account, it can easily be used as an admission of a party opponent if the opposing party is willing to admit that yes – they did make that statement. However, from time to time, that witness might think they can outsmart the legal system by claiming that they never made such an offensive statement. In this post, we will explore how to admit evidence from social media when a party denies authorship.

Rule 901 of the Texas Rules of Evidence sets forth the process for authenticating the evidence – i.e., establishing that the matter in question is what the proponent claims it to be. The rule sets forth "by way of illustration only, and not by way of limitation," examples of authentication. For example, an exhibit may be authenticated by a witness with knowledge that the evidence is what it claims to be. Texas Rules of Evidence, Rule 901(b)(1). An item can also be authenticated by establishing distinctive characteristics, such as "appearance, contents, substance, internal patterns or other distinctive characteristics...." TRE, Rule 901(b)(2).

When the opposing party or hostile witness denies making the statement on his or her social media account, the proponent of the evidence will need a witness who can testify that the computer print out of the social media is accurate. Printouts of pages from a social media website can be authenticated by establishing: 1) that the witness printed the exhibit; 2) the witness is familiar with the computer and printer used to print the exhibit; and the exhibit accurately depicts the web site as it appeared on that day. Rule 1001 Definitions (a), (c) & (d). The witness does not need to be the author of the website, but rather can testify to the fact that the pages printed from the website are accurate. Id.

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"Collaborative Law" is an Alternative Dispute Resolution technique. In Collaborative law, each spouse pledges to sit down in the same room to pursue settlement of the case in the most cooperative way possible. They vow to keep talking until they reach settlement, and to stay out of court at all cost.

Over the years, the Collaborative law model has sprouted several variations. One of them is "cooperative law." I used to say I would never do a Cooperative Case. For those who don't recognize the lingo, Cooperative differs from Collaborative in that there is no attorney withdrawal provision. I felt (and still feel) that the attorney withdrawal provision encourages clients to stay the settlement course when the case gets difficult.

I also felt that the opposing counsel who wouldn't do Collaborative Law probably wasn't committed to settlement. This is where I was wrong. I'm just completing my first Cooperative case. I must admit that there were moments when I felt uncomfortable. If this wasn't a pure Collaborative case and it wasn't a pure litigation case, what on earth were my rules? I waited for the opposing counsel to race to the courthouse when we had our first problem. It didn't happen. In fact, we settled the case and it was done with very little acrimony, although it was a case that could have been hotly contested.

What I learned is that what matters most isn't the form of the process you are using. It is the integrity of the attorneys and parties involved. In Collaborative Law, a party can opt out and run to the Courthouse at any time. In either Collaborative or Cooperative Law, if you have two parties and two lawyers who are committed to settling, it will happen – with or without an attorney withdrawal provision.

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Yesterday (March 1) new Rule 902(10(c) of the Texas Rules of Evidence came into effect. This rule sets out an additional hearsay exception by allowing for proof of medical services by affidavit.

The new rule reads:

(c) Medical expenses affidavit. A party may make prima facie proof of medical expenses by affidavit that substantially complies with the following form: 

STATE OF TEXAS

COUNTY OF ________

Before me, the undersigned authority, personally appeared ________, who, being by me duly sworn, deposed as follows:

My name is ________, I am of sound mind and capable of making this affidavit, and personally acquainted with the facts herein stated.

I am a custodian of records for ________. Attached to this affidavit are records that provide an itemized statement of the service and the charge for the service that ________ provided to ________ on ________. The attached records are a part of this affidavit.

The attached records are kept by ________ in the regular course of business, and it was the regular course of business of ________ for an employee or representative of ________, with knowledge of the service provided, to make the record or to transmit information to be included in the record. The records were made in the regular course of business at or near the time or reasonably soon after the time the service was provided. The records are the original or a duplicate of the original.

The services provided were necessary and the amount charged for the services was reasonable at the time and place that the services were provided.

The total amount paid for the services was $________ and the amount currently unpaid but which ________ has a right to be paid after any adjustments or credits is $________.

________

Affiant

SWORN TO AND SUBSCRIBED before me on the ____ day of ____, ____.

________

Notary Public, State of Texas

Notary's printed name: ________ My commission expires: ________

The new rule has been added to Texas Rules of Evidence.

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"Abuse of discretion" is a standard by which appellate courts decide whether a trial court has made a mistake in deciding a case. In short, a trial court abuses its discretion when it makes an arbitrary or unreasonable decision. The abuse of discretion standard is common in family law cases because so many issues are committed to the sound discretion of the trial court.

Let's illustrate the abuse of discretion standard by showing how it adds an extra layer of analysis to the appeal of an ordinary civil case.

Suppose Bob rearends his truck into Sue's car. Sue sues Bob for wrecking her car and because she broke her leg in the accident. The case goes to trial. Sue wins because the jury says Bob was negligent when he ran into Sue and caused her to break her leg. The jury awards Sue money damages for her medical bills plus pain and suffering.

Bob can win issues on appeal in one of two ways. First, if he can convince the court of appeals that the evidence against him was legally insufficient, then the court of appeals will reverse the trial court's judgment and dismiss the case. Legally insufficient evidence is the equivalent of no evidence at all. Bob would have to prove that Sue did not introduce any evidence on a critical element in her lawsuit. For example, if Sue did not introduce any evidence of how much her medical bills were, there would be legally insufficient evidence to support that part of the judgment.

The other way Bob can win is to convince the court of appeals that the evidence against him was factually insufficient. If the court of appeals agrees, then it will reverse the case but remand it for a new trial. Factually insufficient evidence means that there is some evidence to support an element of a lawsuit, but not enough to conclude that the element is more likely than not proved. This could occur if Sue just wrote down the amounts of her medical bills on a piece of paper and introduced that into evidence instead of introducing her actual medical bills.

Now let's add in the abuse of discretion standard. Suppose Bob and Sue got married instead of in a car wreck, but they later divorced. At trial, the trial judge awarded 75% of the community estate to Sue. Bob is outraged because he believes the division should have been 50-50. Bob appeals.

Property division on divorce is reviewed by the abuse of discretion standard. The first question the court of appeals asks is whether there was legally sufficient evidence before the trial court to prove the extent of the community property and what it was worth. If so, the court of appeals next asks whether the evidence was factually sufficient as to the contents and value of the community estate. If so, the court of appeals then asks whether the trial court abused its discretion when it divided the community estate the way it did. If the court of appeals believes the trial court abused its discretion, the court of appeals reverses the case and remands it back to the trial court to redivide the community estate.

Bob tries to convince the court of appeals that the evidence about the community estate was legally or factually sufficient, but the court of appeals does not agree. To win on his appeal, Bob must persuade the court of appeals that the trial court abused its discretion. In other words, in light of the evidence before the trial court, was the judge's decision to award 75% of the community estate to Sue arbitrary or unreasonable? If so, the court of appeals remands the case for redivision. If not, the court of appeals affirms the trial court's division of property.

A divorce court may consider many, many factors when it decides how to divide the community estate between a couple upon divorce. According to the Texas Supreme Court, some of the factors are

the spouses' capacities and abilities, benefits which the party not at fault would have derived from continuation of the marriage, business opportunities, education, relative physical conditions, relative financial condition and obligations, disparity of ages, size of separate estates, and the nature of the property. We believe that the consideration of such factors by the trial court is proper in making a "just and right" division of the property. Likewise, the consideration of a disparity in earning capacities or of incomes is proper and need not be limited by "necessitous" circumstances.

Murff v. Murff, 615 S.W.2d 696, 699 (Tex. 1981) (citation omitted). These are the things divorce lawyers argue about when they try to settle a case or are at trial.

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