What is "Abuse of Discretion" Anyway?

"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.

Anatomy of a Texas Family Law Appeal - Findings of Fact and Conclusions of Law

In a prior post, we discussed findings when child support is at issue. But there is another type of findings: Findings of Fact and Conclusions of Law, per Rules 296 et seq. of the Texas Rules of Civil Procedure.

Rule 296 states that a Request for Findings of Fact and Conclusions of Law must be made within twenty days of the date the judge signed the decree, judgment or order being appealed.  

Findings of Fact and Conclusions of Law can be requested when a family law case is tried before a judge. They are not available if the case is submitted to a jury. But most Texas family law cases are tried to the bench, so whether to request findings is usually an issue to be considered when appealing the case.

When a trial court makes Findings of Fact and Conclusions of Law, the appellate court inquires whether the findings support the judgment and whether there is sufficient evidence in the record to support the findings. When a family law appeal concerns parent–child issues other than child support, findings normally are not especially helpful to the appellate court because of the nature of these issues. The type of conservatorship ordered and times for possession and access are committed to the discretion of the trial court. A finding that, for example, the parents should be joint managing conservators adds nothing to the record because the appellate court still must consider the sufficiency of the evidence underlying the trial court's decision.

In addition to the findings allowed by the Texas Rules of Civil Procedure, Texas Family Code section 6.711(a) specifically provides for findings when there are property issues:

(a) In a suit for dissolution of a marriage in which the court has rendered a judgment dividing the estate of the parties, on request by a party, the court shall state in writing its findings of fact and conclusions of law concerning:
(1) the characterization of each party's assets, liabilities, claims, and offsets on which disputed evidence has been presented;and
(2) the value or amount of the community estate's assets, liabilities, claims, and offsets on which disputed evidence has been presented.

Findings of Fact and Conclusions of Law on valuation and characterization can be very helpful to the party who appeals on those issues. Because the court is forced to specify values, one can determine what evidence, if any, the record contains to support those values. One also can determine the exact proportionate division of the community property, opening up a challenge to disproportionate division. Finally, the evidence can be reviewed on characterization issues.

The Acceptance-of-Benefits Doctrine Can Bar a Texas Family Law Appeal

The acceptance-of-benefits doctrine states that a party cannot treat a judgment as both right and wrong. In other words, an appellant cannot accept benefits under the judgment while simultaneously attacking the judgment. If an appellant accepts benefits, then the appellant is barred from questioning the judgment on appeal

The Beaumont Court of Appeals applied the acceptance-of-benefits doctrine in Tomsu v. Tomsu. The husband appealed a divorce decree. He raised six issues on appeal. Four of those issues complained about the division of the community estate. But after the trial court rendered judgment, the husband deposited $6,711 into an account that would have been community property. He also accepted a check from the wife for $37,000 pursuant to the divorce decree.

The Beaumont Court dismissed the community-property issues as moot because the husband accepted these funds. The Court did note that an except to the acceptance-of-benefits doctrine exists when an appellant's "economic circumstances made his acceptance an economic necessity." But the husband did not attempt to invoke this exception to the doctrine.

The remaining two issues - whether the trial court abused its discretion when it failed to award spousal support to the husband, and whether any evidence supported the trial court's award of appellate attorney's fees to the wife - were not affected by the acceptance-of-benefits doctrine because they did not concern the division of the community estate.

Tomsu reminds us that when considering an appeal, a party must be careful not to accept the benefits of the judgment unless the party has no choice because of economic necessity. Otherwise, the appeal could be barred.


Anatomy of a Texas Family Law Appeal - Child Support Findings

The first post of the Anatomy of a Family Law Appeal series made the point that positioning a case for appeal begins at trial and sometimes even before trial has begun. This post highlights the first post-trial deadline in cases in which the trial court sets the amount of child support. That deadline can be as short as ten days after the child-support hearing, regardless whether the trial court has ruled.

Section 154.130 of the Texas Family Code states that the trial court must make child support findings if:

(1) a party files a written request with the court not later than 10 days after the date of the hearing;

(2) a party makes an oral request in open court during the hearing; or

(3) the amount of child support ordered by the court varies from the amount computed by applying the percentage guidelines under Section 154.125 or 154.129, as applicable.[1]

If a party makes a timely request for child support findings, then the trial court must state whether application of the guidelines would be unjust or inappropriate plus make the following findings:

(1) the net resources of the obligor per month are $______;

(2) the net resources of the obligee per month are $______;

(3) the percentage applied to the obligor's net resources for child support is ______%; and

(4) if applicable, the specific reasons that the amount of child support per month ordered by the court varies from the amount computed by applying the percentage guidelines under Section 154.125 or 154.129, as applicable.

When litigating the amount of child support, be sure to calendar ten days after trial to consider asking for child support findings.

[1] Sections 154.125 and 154.129 provide alternative methods by which to calculate "guideline" child support. For information about guideline child support, see Child Support Changes September 1.

Anatomy of a Texas Family Law Appeal - In the Trial Court

It is sometimes believed that the decision whether to appeal a case comes after the trial court has signed a final decree. But positioning a case for appeal begins at trial and sometimes even before trial has begun. The latter case – preserving the record before trial – applies primarily to jury trials and will not be a subject of this post. Preserving error during trial is the focus today.

If the complaint on appeal will be that the trial court abused its discretion by admitting evidence offered by the opposing party, the trial attorney must make timely and specific objections to that evidence. Objections such as “lack of predicate”[1] or “irrelevant and immaterial”[2] preserve no error for review. The objecting party must be specific as to why the proffered evidence should not be admitted. In the words of Tex. R. Evid. 103(a)(1), to preserve error, “a timely objection or motion to strike” must appear in the record, “stating the specific ground of objection, if the specific ground was not apparent from the context.”

How does a party preserve error when the trial court refuses to admit evidence offered by that party? Rule 103 again provides that “the substance of the evidence” must have been “made known to the court by offer, or was apparent from the context within which questions were asked.” Rule 103(a)(2). The substance of the evidence can be made by summarizing it unless the court or a party requests that the offer be made in question and answer form. Rule 103(b). An offer of proof is sometimes called a “bill of exceptions.”[3]

If the trial court made a mistake by admitting the other party's evidence, there must be a timely and specific objection to that evidence in the record. If the trial court refused to admit evidence, there must be an offer of proof in the record. Otherwise – with extremely rare exceptions - the appellate attorney's hands are tied in the appellate courts, at least as to grounds for appeal relying on the erroneous introduction or exclusion of evidence.

[1] Waldon v. City of Longview, 885 S.W.2d 875, 878 (Tex. App. - Tyler 1993, no writ).

[2] Top Value Enterprises, Inc. v. Carlson Marketing Group, Inc., 703 S.W.2d 806, 811 (Tex. App. - El Paso 1986, writ ref'd n.r.e.).

[3] Mack Trucks v. Tamez, 206 S.W.3d 572, 576 n.4 (Tex. 2006).


Accelerated Appeal of a Bill of Review?

In a split decision, the Fourteenth Court of Appeals decided that the appellate deadlines for a bill of review to set aside a decree terminating parental rights should be those applicable to ordinary, rather than accelerated, appeals. In the Interest of A.A.S., No. 14-11-00489-CV (Tex. App. - Houston [14th Dist.] May 10, 2012, n.p.h.).

The appeal came about because a child's mother knew how to contact the father but concealed that information from the Texas Department of Family and Protective Services when the Department filed a petition to terminate the father's parental rights. Consequently, the Department served the father by publication. A year later, the father learned of the termination. Because the time for appeal had passed, the father filed a bill of review. A bill of review is an equitable proceeding to set aside a prior judgment that no longer can be challenged by a motion for a new trial or by direct appeal.

Despite the mother's perfidy, the trial court denied the bill of review. The father then appealed the bill of review. The question on which the Fourteenth Court split was whether the appeal of the bill of review should be governed by ordinary appellate deadlines or those applicable to accelerated appeals. If the former applied, then the father's appeal was timely; if the latter applied, then the court of appeals lacked jurisdiction over the case because the father waited too long to appeal the denial of the bill of review.

The Court's decision rested on Tex. Fam. Code section 109.002(a), which read in pertinent part:

An appeal from a final order rendered in a suit, when allowed under this section or under other provisions of law, shall be as in civil cases generally. An appeal in a suit in which termination of the parent-child relationship is in issue shall be given precedence over other civil cases and shall be accelerated by the appellate courts. The procedures for an accelerated appeal apply to an appeal in which the termination of the parent-child relationship is in issue.

(emphasis added). The statute has since been amended to add the phrase “under the Texas Rules of Appellate Procedure” in two places, but its substance remains unchanged.

The Court's majority reasoned that termination of the parent-child relationship was not “in issue” because the only issue before the Court was whether the Department had properly served the father by publication. In contrast, the dissent reasoned that because reversal of the case would result in vacation of the termination decree, termination of the parent-child relationship was “in issue” in the bill of review proceedings.

The majority held that the Court had jurisdiction and affirmed the case on its merits. The dissent would have dismissed the appeal for want of jurisdiction.

Appellate Review Without Reporter's Record

In a case called In re: A.S., a divided Beaumont Court of Appeals affirmed a trial court's termination of parental rights without a reporter's record.  The majority said that it could tell that the appeal would be frivolous based upon the record from a post-trial hearing. The majority refused the appellant's request that the trial itself be transcribed before considering the appeal.

This is an astounding decision.  At the post-trial hearing, counsel for the Texas Department of Family and Protective Services (TDFPS) told the trial court what the evidence had been at trial.  The parent's appellate attorney, who did not try the case, was unable to respond with any particularity.  Although the appellate attorney had spoken with the attorney who represented the parent at trial, the appellate attorney had no opportunity to review the trial evidence - by reviewing the reporter's record - because the Beaumont Court's majority decided it didn't need the reporter's record to conclude that the appeal was frivolous. 

Thus, the Court's majority decided the appeal of a termination case based on the recollection of the attorney for TDFPS of what the evidence at trial showed.

In dissent, Justice Gaultney put the matter bluntly:  "An appellate court cannot determine whether a factual sufficiency issue is frivolous without reviewing the evidence."  Citing a United States Supreme Court opinion, Justice Gaultney further inquired how an appellate attorney could "adequately challenge a frivolous finding on a factual sufficiency issue without access to a reporter’s record."

We hope that the appellate attorney files a petition for review with the Texas Supreme Court.  Cutting corners when it comes to due process undermines confidence in the judicial system.

An Appellate Catch-22

Wikipedia explains that "Catch-22" is common idiomatic usage meaning "a no-win situation" or "a double bind." Although the San Antonio Court of Appeals did not use that term, it recognized the concept in a termination case called In re: R.M.

Termination appeals are tricky. First of all, one must appeal within twenty days rather than the usual thirty days because termination appeals are accelerated appeals. For the same reason, a motion for new trial or the like will not extend the appellate deadline as in the ordinary appeal.

In termination cases brought by the Texas Department of Family and Protective Services, there's a further requirement.  Per Texas Family Code section 263.405(b), an appellant must, within fifteen days after the termination order is signed, file a statement of points on which the party intends to appeal. If no statement is filed, then no issues are preserved for appeal.

One issue that can be raised in a termination case is ineffective assistance of counsel. In In re: R.M., the parent tried to raise that issue on appeal, but because the (ineffective) counsel did not include ineffective assistance of counsel in a statement of points to be raised on appeal, the issue was not preserved for review by the Court.

The Court recognized the result as "harsh" and joined other courts in calling for the legislature to change the statute. Quoting the Dallas Court of Appeals, the Court characterized section 263.405(b) as "a trap for the unwary."  But instead of ridding the state of this trap, the legislature added a second one.  It amended section 263.405(b) to contract the deadline for filing motions for new trials to fifteen days in TDPRS cases.

In other words, yet another Catch-22.

Family Law Appeal Procedure

A family law appeal has three primary stages.  They are (1) perfecting the appeal, (2) briefing, and (3) submission.

Perfecting the appeal of a family law case is time-sensitive.  If the correct documents are not timely filed, the appellate court will not have jurisdiction of the appeal, and the appeal must be dismissed.

To perfect a family law appeal, the appellant normally files four documents:  (1) the Notice of Appeal; (2) the Request for Reporter's Record; (3) the Request for Clerk's Record; and (4) the Docketing Statement.  In addition, the appellant must pay a fee of $125 to the clerk of the appropriate appellate court.

Briefing the appeal takes place after the record (consisting of the Reporter's Record and the Clerk's Record) has been filed.  The appellant's brief normally is due 30 days after the last-filed part of the record.  The appellee then has 25 days within which to file a response, after which the appellant may file a reply within 20 days of the appellant so wishes.

Submission of the appeal is the final step.  "Submission" means formal presentation to the court of appeals.  Most appeals are not only briefed but argued orally to a panel of judges (if in the court of appeals) or to all nine judges of the Texas Supreme Court.

When an appeal is argued orally, the appellant's lawyer has twenty minutes to argue, then the appellee's lawyer has twenty minutes, and finally the appellant's lawyer has five minutes to argue in rebuttal.  These deadlines are strictly enforced by the appellate judges; a "green light/yellow light/red light" system is in effect, with the lights visible to the lawyers as they argue.

Because usually a number of months pass between briefing and submission, it is customary for counsel to write a letter to the clerk of court perhaps two weeks before submission to alert the court to relevant cases that have been decided since briefing.

Family Law Appeals

Family law appeals, like appeals in other civil cases, are taken under the Texas Rules of Appellate Procedure. Under those rules, most post-trial and appellate deadlines run from the date the judgment, or decree, is signed by the trial court.

To perfect an appeal, one must file a notice of appeal and a docketing statement. One also must order the reporter's record (the court reporter's transcription of the hearing or trial) and specify supplements to the clerk's record (what has been filed with the clerk of the court). These materials are filed with the court of appeals. The parties later submit briefs in accordance with detailed briefing rules and ultimately argue their cases before the court.

Special rules apply to family law appeals. Among them are:

If a parent wants to know exactly how the trial court calculated child support, the parent might need to make a special request to the court.

Appeals from the rulings of associate judges must be filed within three days of the date of hearing.

Termination and paternity cases are treated as accelerated appeals, which means that the notice of appeal must be filed earlier than in normal cases.

The reader should take care to determine whether any special rules apply to a particular case.