The Enos Law Firm
17207 Feather Craft Lane, Webster, Texas 77598
(281) 333-3030 Fax: (281) 488-7775
E-mail: greg@enoslaw.com Web site: www.divorcereality.comPlease forward this e-mail newsletter
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Greetings!
This newsletter focuses on short, practical legal articles and forms you can use. I also review who is running for which bench now that the 2014 campaign season is underway.
I do not expect to win every case. I just want an efficient system in which my client gets a fair hearing by a judge who works hard, knows the law, and does not play favorites. I also expect judges to appoint qualified amicus attorneys who zealously look after children (and actually visit the kids in their homes). Is that asking too much? Stay tuned.
Greg Enos (281) 333-3030 greg@enoslaw.com
The Mongoose is watching!
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247th District Court (Judge Hellums)
Now Requires Electronic Filing
Starting May 1, all filings in the 247th District Court (Judge Hellums) must be filed electronically just like in Judge Millard's court. Free filing using the District Clerk's FreeFax service will be available.
Texas Supreme Court Clarifies Rule That A Property Owner Can Testify About The Value of His or Her Own Property
It has long been the rule in Texas that the owner of a property can testify as to the property's value even if the homeowner cannot qualify as an expert witness. Mata v. Mata, 710 S.W.2d 745, 758 (Tex. App.- Corpus Christi 1986, no writ). The Texas Supreme Court in December 2012 limited that rule and held that the property owner must explain the basis for his or her opinion as to value.
Who is Running For What
In Harris County?
We have all enjoyed a few blissful, quiet months when judicial candidates could not hit us up for contributions. May 13 is when those carefree days end and incumbent judges and those who dream of being judges will start what seems to be a perpetual shake down for cash. The deadline to file for election is in January 2014!
Harris County is in that uneasy transition time when most know inevitable demographic changes will someday elect nothing but Democrats (as in Dallas county). But for now, almost everyone with judicial ambitions seems to forget they are pro-choice, anti-gun, open minded to gays and not wanting to impose their religious beliefs on others. In other words, they are claiming to be Republicans even as the true believers in the party try to sniff out RINO's (Republicans in Name Only).
Most folks do not realize that in the Harris County GOP primary elections for judicial posts, candidates who get just a few key endorsements from political brokers are almost always elected. In the 2012 GOP primaries in Harris County, 91.7% of the primary candidates endorsed by Steven Hotze won, 82.6% of the candidates endorsed by Terry Lowry won and 79.5% of the candidates endorsed by Gary Polland won. Click here to read a Houston Chronicle Blog on the subject. The Houston Police Officers PAC is also extremely influential (ask Doug York).
This is what one GOP activist wrote last year on his blog;
As they have gutted the party, they have allowed a private pay-for-play system to evolve within our party, whereby primary candidates have to hire a specific consultant, and/or have to pay for "advertising" in a "newsletter," in order to have an opportunity to get the endorsement of one or more of three men whose mailing lists gets their endorsements into the hands of every GOP primary voter. A statistical analysis of the effect of these endorsements shows that these three men now effectively control who wins our primaries. Moreover, anecdotal observations of primary voters show that most of them take one of these three endorsement lists into the polling places as references as they vote, which reinforces the accuracy of the statistical analysis. This pay-for-play system not only effectively rigs the primary before a vote is ever cast, and constitutes a tax on our candidates just to participate in the electoral process; it also creates a public appearance of potential impropriety...
Click here to read this blog.
Here is what is currently known about candidates for family district courts in Harris County:
245th Judge Roy Moore is seeking reelection and has a steering committee which includes almost every family lawyer we know. Judge Moore is having a fundraiser on May 14 at Hughes Hangar, 2811 Washington Ave from 5:30 p.m. - 7:30 p.m.. There are no announced opponents for Judge Moore.
246th Judge Jim York is retiring. Associate Judge Charlie Prine from the 309th is running for the GOP nomination and given his long Republican history and connections, he basically has the nomination already sewn up (see note on GOP endorsements above). Best jump on this freight train early. The good news is that Judge Prine will definitely give fathers a fair shake (at least heterosexual dads) and he has learned a lot of family law working for Judge Dean. Prine seems to be as friendly and reasonable with attorneys as Judge York. No lawyers have announced as Democrats yet for this race.
247th Judge Bonnie Hellums is retiring. Republican candidates include Alicia Franklin, Melanie Flowers, and Meca Walker. I intend to write more about this interesting race and who is putting pressure on lawyers to support various candidates.
257th Judge Judy Warne is presumably seeking reelection if she is not appointed to an opening on the court of appeals.
280th Judge Lynn Bradshaw-Hull is presumably seeking reelection.
308th Judge James Lombardino will seek reelection if he is not appointed to replace Olen Underwood as the Administrative Judge for our judicial region, if Judge Underwood were to retire this year. All current and former GOP chairs are urging Judge Lombardino to stay right where he is however.
309th Judge Sheri Dean intends to seek reelection and also presumably remain my backyard neighbor despite the barking of my not so yellow, but intensely partisan, Democratic dogs. I have not heard of anyone running against her.
310th Judge Lisa Millard will be seeking reelection. No challengers have announced.
311th Judge Denise Pratt says she is seeking reelection. Phil Plazcek has announced he will run as a Republican against her even though he briefly ran as a Democrat for Judge in the last election. Prominent members of the family bar are still seeking a more mainstream GOP candidate to oppose Pratt.
312th Judge David Farr will seek reelection. No one has announced they are running in either party against him (which is a good thing).
There will likely be Democrats filing for most or all of the family court benches. But, unless a particular race will have more than one candidate, the Democrats do not feel the need to announce so very early like the Republicans.
The Ultimate Property
Division Spreadsheet
Two years ago I organized a half day seminar for about 300 lawyers called the "Ultimate Property Division Seminar." I talked to a lot of judges about what they wanted and did not want to hear in a property division trial in preparing for that seminar. Here is the one thing all judges wanted -- a unified spreadsheet which shows both parties' values and proposed divisions and which provides space for the judge's ruling. This ideal spreadsheet can only be prepared after you have both spouse's proposed values and divisions. The spreadsheet has to be printed on very wide ledger size paper (or two letter size pages taped together) and have columns for: -- Asset/Debt -- Husband's Proposed Value -- Wife's Proposed Value -- Court's Value (blank - for judge to fill in) -- Husband's Proposed Division -- Wife's Proposed Division -- Court's Division (blank) The spreadsheet should also show the differences between the parties on what is separate property. I color code the columns in stereotypical pink and blue. A "working copy" of the exhibit should be provided the judge that can be written on in addition to the exhibit given to the court reporter. This is a sample I just prepared for use in a trial that settled at the pre-trial conference.   Judges who know how to use a spreadsheet should order the attorneys to prepare such spreadsheets for every trial and to provide a digital copy to the judge so the judge does not have to make calculations by hand. Click here to download this form in Excel.
Closing Costs Should Usually Not Be Deducted From the Value of a Home
A divorce court in Texas should usually not reduce the value of a house because of closing costs and realtor fees because that approach is not consistent with the definition of "fair market value," and because such closing costs are too speculative. There is no definitive Texas case law on point, but the majority of other states have held that closing costs should not be considered in the value of a house unless a sale is actually imminent or planned.
Two older Texas cases could be interpreted to approve of reducing the value of a house in a divorce by the cost of sale. In Pelzig v. Berkebile, 931 S.W.2d 398, 403 (Tex. App. - Corpus Christi 1996, no writ), the court of appeals said,"The judge's finding of a $99,000 value after deducting ten percent closing costs was within the range of values suggested by the evidence." In Cole v. Cole, 880 S.W.2d 477, 484 (Tex. App. - Fort Worth 1994, no writ), it is not clear at all what method the trial court used in finding the house had a net value of $180,440. An appraiser testified about a range of possible values and estimated closing costs. The court of appeals upheld the trial court and said,"It is possible that the court started with the figure of $275,000 because it took into account the various deductions that would be made for closing costs and taxes." Neither of these cases involved an appellant specifically challenging the trial court's deduction of sales costs from the value of a house. In Pelzig v. Berkebile, the parties apparently both agreed to deduct the cost of sale from the value. It was not clear even to the court of appeals what methodology the trial court used in Cole v. Cole to value the house and there are no other Texas cases on point.
Case law and the Texas Pattern Jury Charge define "fair market value" as "the amount that would be paid in cash by a willing buyer who desires to buy, but is not required to buy, to a willing seller who desires to sell, but is under no necessity of selling." Texas Pattern Jury Charges - Family & Probate (2012), PJC 203.1. The amount paid in cash by a willing buyer for a house is the total amount paid and the definition does not say "the net amount the seller walks away with after paying all costs and fees." If I sell my house to Sheri Dean for $250,000, the fair market value according to the PJC is $250,000 and not what I net after paying the real estate agent and all closing costs. The mortgage is taken into account in a divorce because it is a current community debt. If there are no current plans to actually sell the house, the amount of realtor fees and closing costs is speculative. It is likely a real estate broker will be used but some houses are sold directly without an agent. In some cases, the broker's fee is negotiated down from the usual six percent. Other typical closing costs for a seller include the cost of title insurance (which is negotiable and not always paid by the seller) and prorated property taxes and homeowners association dues (which are not paid in many situations). It is thus impossible to predict accurately what the cost of sale for a particular house will be, especially if the house is not for sale and may not be sold for years or decades. In a divorce, the trial court properly may not consider liabilities that are uncertain and speculative. Means v. Means, 535 S.W.2d 911, 914 (Tex. App. - Amarillo 1976, no writ)(trial court properly did not consider the potential liability of lawsuits against the husband's business because they were too speculative).
Courts from the vast majority of other states have held that the value of a house should only be reduced by the costs of sale if there is evidence in the record of an imminent sale and evidence of the estimated costs of sale. In re Marriage of Berg, 737 P.2d 680, 683 (Wash. App. 1987); McDaniel v. McDaniel, 829 P.2d 303 (Alaska 1992); Coviello v. Coviello, 605 A.2d 661 (Md. App. 1992); Virgin v. Virgin, 990 P.2d 1040, 1049 (Alaska 1999); In re Marriage of Kopplin, 703 P.2d 251, 253 (Or. App. 1985); In re Marriage of Stenshoel, 866 P.2d 635, 641-42 (Wash. App. 1993). See also Taber v. Taber, 626 So.2d 1089, 1089-90 (Fla. Dist. Ct. App. 1993); In re Marriage of Benkendorf, 624 N.E.2d 1241, 1245-46 (Ill. App. 1993); Carlson v. Carlson, 487 S.E.2d 784, 786-87 (N.C. App. 1997); Waldow V. Wadlow, 491 A.2d 757 (N.J. App. Div. 1985). A minority of states have approved deduction of closing costs from the value of a home even if there are no current plans to sell the home. See e.g., Abrams v. Abrams, 516 N.W.2d 348, 350-351 (S.D. 1994). Student Loans Incurred Before Marriage Are Separate Debt
A trial court cannot order one spouse to pay the student loans of the other spouse which were incurred before the marriage. The Houston First Court of Appeals has ruled:
The obligation to pay the loans arose before marriage and should be treated as Sophia's separate debt-separate debt that could not be assigned to the non-incurring spouse. Accordingly, we conclude the trial court erred in assigning Sophia's premarital student loan debt to Albert because that student loan debt constituted Sophia's separate debt.
Love v. Love, 217 S.W.3d 33, 35 (Tex. App. - Houston [1st Dist.] 2006, no pet.).
Gifts to Family Members Are Not Always Constructive Fraud or Waste
Marshall v. Marshall, 735 S.W.2d 587 (Tex. App. - Dallas 1987, writ ref'd n.r.e.), involved a two and a half year marriage and a husband who, during the marriage, earned $542,315.72 and gave $63,375.58 (11.7%) to his daughter and grandson. The trial court's ruling that these gifts were not constructive fraud, was upheld by the court of appeals, which said:
The courts consider three primary factors in determining whether the wife's claim of constructive fraud exists: the size of the gift in relation to the total size of the community estate, the adequacy of the estate remaining to support the wife in spite of the gift, and the relationship of the donor to the donee.
We conclude that the evidence supports the trial court's finding of no constructive fraud. The community received $542,315.72 during the marriage as Woody's special community property. The contested gifts of $63,375.58 are only 11.7 percent of this amount. The remaining $478,940.14 in community funds from the partnership was sufficient to support the wife. Finally, Woody made the gifts to his daughter and grandson, the natural objects of his bounty. We also agree with the trial court's finding that there was no intent to deceive Arlene. She knew about the gifts, and although she may not have actively consented to them, there is also no evidence that she objected to them. We overrule Arlene's complaint of the trial court's denial of her claim for reimbursement for gifts to Debra and Dustin.
Id. at 596-7.
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Family Law Appellate Decisions for April 2013 Summarized "What about those of us who knew better? We who knew the words were lies and worse than lies? Why did we sit silent? Why did we take part?"
Judgment at Nuremburg (1961 movie) 
Judge Dupuy Should Soon Be
A Disagreeable Memory
May 2013 should be the month when Galveston County Court No. 3 Judge Christopher Dupuy gets hit with the results of the criminal investigation into his behavior and finally is served with a civil removal lawsuit that could result in his immediate, temporary suspension from office.
Lawyers from the Texas Attorney General's office and Texas Rangers have been meeting with Dupuy's victims and attending some of his more unusual court hearings.
Dupuy and his attorney, George Parnham, have reportedly talked about a deal with the AG, but it sounds like Dupuy has decided to hold on to his judicial paycheck for as long as he possibly can.
I finally finished the 87 page, single spaced draft removal lawsuit involving Dupuy with a foot of exhibits attached. I delivered it to the Assistant Attorney General in Austin who has actually filed and won removal suits against county officials. I have spent 30 hours or more a week for about three months on this project and I am totally ready to spend more time with my family, get back to this newsletter, my legal writing and research, my charity work, and researching London in 1880-81 for a book I am writing (who can say which famous "fictional" characters first met and worked together in the Winter of 1880-1881?).  The above photo from 1880 shows that Londoners knew all about traffic and mass advertising. Click here to see an amazing video of Victorian London that will make look 610 at the Galleria look tame. Who knew they could even make movies before there were automobiles?
Clear Lake Attorneys: Please Support The CCISD Bond Issue
Attorneys who live in Clear Lake and League City need to educate themselves about the CCISD bond election and then vote "Yes." Click here for information on this very important bond issue and voting dates and locations. Early voting has started and the election is May 11.
Interfaith Caring Ministries
Golf Tournament
Local attorneys and golfers need to support the largest Clear Lake area charity serving the poor, Interfaith Caring Ministries, by participating in ICM's 17th Annual Golf Tournament on Monday, May 6 at South Shore Country Club. Click here for more information. I served as President of ICM's Board last year and I know what a very worthwhile organization ICM is. It operates a huge food pantry and provides emergency financial assistance to families in crisis. ICM also provides school supplies to low income children, runs a computer lab for needy kids, provides assistance for single parents to pay for daycare while the parent goes to school, and provides Christmas gifts for about 700 needy families each year.
What Have the Courts of Appeals Done to Family Law Lately?
Most mornings, I check the web sites of all 14 courts of appeals to see what opinions related to family law have been released. I think we need a separate family law court of appeals made up of board certified family law specialists, just like the we have the separate Court of Criminal Appeals. But, criminals continue to rank ahead of children and divorcing spouses, so here is what the courts of appeals have done to and for family law recently:
Error to disqualify an attorney because he is a witness unless he is the only witness to specific events, i.e. - necessary to establish an essential fact. Get over the notion that just because a lawyer may be a witness, that he or she must automatically be disqualified. Here, in this divorce action in Fort Bend County, the wife's lawyer took her to a bank to open an account and oddly took photographs to document the event, the attorney hired the wife to work in her office in spite of pleading the wife was unable to work, and the attorney helped the wife "financially or otherwise" with her psychological treatment. The court of appeals noted," The hearing record reflects that there is no evidence that relator's attorney is the only person in possession of facts regarding these allegations. Thus it was not shown the testimony of relator's attorney is necessary to establish an essential fact." The court of appeals also concluded there was "no evidence that actual prejudice would result if the attorney does testify as a fact witness." Mandamus granted. In re Stone, 14th Court of Appeals, 14-13-00311-CV, 4/19/2013.
How NOT to show failure to supplement when trying to strike evidence not supplemented 30 days before trial. The wife's objection to financial documents which she said had not been produced at least 30 days before trial was properly overruled by the trial court because the wife did not show to the trial court that: (1) her discovery request specifically asked for the document, and (2) the objection to the wife's production request made by the husband was not ruled on by the trial court. Also, the husband's attorney said that his response stated the documents were available at his office for inspection and the wife's attorney never came to look at them. The wife would have had to prove that the documents were not really made available for inspection. Part of the moral to this story is that discovery requests and responses are not filed with the clerk, so a party who objects to evidence that was not disclosed in discovery must get the discovery request and response into the record, either as an exhibit in court or at least as an attachment to a motion to compel. This case also says that if the other party objects to your discovery request, you must get a court ruling on the objection before you can complain it was not produced. However, remember TRCP 193.4(c) that says a party may not use in any hearing or trial any material withheld from discovery under a claim for privilege without timely amending and supplementing. Richard v. Towery, 1st Court of Appeals, 01-11-00132-CV, April 18, 2013.
A party can do his own tracing of separate property! This case is one of many examples of cases in which a party (in this case, the husband) did his own tracing of financial accounts to prove how much was separate property. In this case, the husband was an attorney and a CPA. There was no objection to his qualifications made to the trial court. The court of appeals reviewed some very complex financial account tracing and approved what the husband calculated. It certainly seems logical that if we allow a party to testify about the value of his house without being a real estate appraiser, that we should allow a party to testify about tracing as long as the methodology is explained and is proper. Richard v. Towery, 1st Court of Appeals, 01-11-00132-CV, April 18, 2013. Another case decided this month by the San Antonio Court of Appeals is another example of a party tracing (or trying to trace) his own separate property. Unfortunately, this is also a great example of how not to trace and what evidence is insufficient to prove separate property. Nalbach v. Nalbach, 4th Court of Appeals, 04-11-00802-CV, 4/17/2013.
A spouse is entitled to an offset against the value of a community property business for the value of separate property assets contributed to the business. Hooray for the attorney who cites a case from 1889 and wins! Perhaps we all should review Schmidt v. Huppman, 11 S.W. 175 (Tex. 1889), which held "Where it satisfactorily appears, as in this case, that one spouse brought into the partnership separate funds invested in a particular business, which business was carried on and the profits arising therefrom used in creating and building up the community estate, and the separate funds are employed in the same business at the dissolution of the partnership, upon settlement with the community estate we think the spouse furnishing such separate funds is entitled to reimbursement therefore." At the trial of this divorce, 123 years after the Schmidt v. Huppman case was decided, the husband proved that his sole proprietor law firm on the date of marriage had $383,233.35 in accounts receivable, $175,391.70 in unbilled time for work in progress, $5,000 in furniture and fixtures, $22,003.74 in accounts payable and $95,307.40 in accrued payroll. The husband convinced the trial court to value the law practice at a negative amount by subtracting the above figures from the current value of the law practice. The court of appeals upheld this finding and pointed out that it was uncontroverted that the husband contributed the above separate property assets to a business that was community property and so he was entitled to the offset. Richard v. Towery, 1st Court of Appeals, 01-11-00132-CV, April 18, 2013. Richard Orsinger of San Antonio brilliantly represented the husband in this case out of County Court No. 2 in Galveston County (Judge Dibrell before he retired).
The trial court did not abuse its discretion by conducting a two day divorce trial in April 2009, then abating the trial while IRS tax issues were resolved and then making a rendition of the divorce in November 2010 based on a cut off date of April 1, 2009 for characterizing and valuing property. The wife who complained on appeal about this unusual procedure did not object to the trial court at the time until she filed a motion for new trial after rendition and judgment. The court of appeals ruled that by participating in this procedure without objection, the wife waived any complaint on appeal. This case reminds us that objecting to a trial court ruling for the first time in a motion for new trial may be too late. TRAP 33.1(a)'s requirement that a complaining party on appeal must show he or she "made proper, timely and sufficiently specific objection or request in the trial court and obtained a ruling" is often not satisfied by waiting until the motion for new trial to object. Richard v. Towery, 1st Court of Appeals, 01-11-00132-CV, April 18, 2013.
Attorney cannot intervene for fees after judge approves MSA and renders judgment. This case involves our colleague, Julia Maldonado, who represented the wife at mediation where the parties settled then at the prove up where the judge approved the agreement. Maldonado then filed a motion to withdraw, which was granted, and then attempted to intervene for her fees. The trial judge granted a motion to strike the intervention. Held: an intervention filed after judgment, including after rendition of judgment, is not timely. Maldonado v. Rosario, 1st Court of Appeals, 01-12-01071-CV, 4/2/2013.
Divorce decree without step-down language terminated child support when "any" child turned 18, even if the younger child was still a minor and still in high school. This 1993 divorce involved two children, yet the decree ordered the father to pay child support, "...until the date of the earliest occurrence of one of the following events: a. any child reaches the age of eighteen years,... b. any child marries..." There was no step down provision that said "thereafter he pays $xxxx.xx until..." Judge Farr and then the First Court of Appeals ruled that the decree means what it says and the father's child support obligation ended in 2003 when the oldest child turned 18 even though the younger child did not turn 18 until 2008. Thus, the trial court properly denied the mother's request to confirm a child support arrearage for payments due after 2003. Smith v. Goodrum, 1st Court of Appeals, 01-11-00784-CV, 4/18/2013. Moral: always include the full step-down provision in child support orders.
Trial cannot proceed with just 11 jurors unless the juror is stricken because he or she is constitutionally disqualified. A trial court should declare a mistrial if a juror realizes during the trial that he knows some of the people involved in the case and thus might be impartial. It violates the constitutional right to a jury trial to proceed with 11 jurors absent agreement of the parties unless the juror is disqualified within the meaning of the Texas Constitution (physical or mental incapacity of the juror, not caring for a sick family member and not realizing he or she might be biased). In re M.G.N., 4th Court of Appeals, 04-12-000108-CV, 4/24/2013.
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Attorney Greg Enos has been through his own divorce and child custody battle (he won) and understands what his clients are going through. Enos graduated from the University of Texas Law School and was a very successful personal injury attorney in Texas City before he decided his true calling was to help families in divorce and child custody cases. Greg Enos is active in politics and in Clear Lake area charities. He has served as President of the Bay Area Bar Association and President of the Board of Interfaith Caring Ministries.
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Attorney Greg Enos
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