Issue: No. 52               
October 23, 2014
  The Enos Law Firm
  17207 Feather Craft Lane, Webster, Texas 77598
  (281) 333-3030    Fax: (281) 488-7775
  E-mail: greg@enoslaw.com              
  Please forward this e-mail newsletter to everyone
who cares about our family courts!
   

Click here for an archive of past issues of The Mongoose. 

First, I have a correction to make.  There is a Texas Family Law Practice Manual Form for a Motion to Enter QDRO, form 25-41.

Gary Polland at least reads The Mongoose.  Polland once almost always billed 5.0 hours for every single home visit that someone in his office did.  Now, after I reported that odd fact, Polland has started billing in less round, less easy to question amounts.  In Cause No. 2014-41117, Polland submitted an invoice to Judge Lombardino claiming that Polland spent 4.2 hours on August 29, 2014 for a home visit with the mother and to prepare a report.  The attorney for the mother e-mailed me to say:

 

Pollard did visit with my client on August 29, 2014 (Friday)  from about 4:45 to about 5:15 p.m. [30 minutes total] .... I have a tape recording of the home visit....  The drive according to MapQuest (59 to 45 south. Freeway miles)  from Polland's office to my client's home is  8.12 miles -- about 11 minutes.  Pollard billed 4.2 hours for 8/29/2014 --that is impossible. .....  Gary's report [on the home visit] was about two pages long and he had about six pictures.


Unless traffic was really bad that day, it would appear Mr. Polland still has record keeping problems with recording the accurate amount of time spent on CPS cases.  At least Polland attended that home visit himself instead of sending an associate or social worker.

The Board of Family Judges met and decided not to follow the example of Judges Farr and Hellums regarding CPS ad litem appointments and fees.  The most the judges could agree to do was require ad litems to clearly state on their fee applications if any of the work was done by someone else.  Click here to see the administrative order that will apply to all CPS cases in the nine family courts in Harris County.  So, the politically connected favorites will still get a lot of appointments in some courts and they will be allowed to bill the county for work done by associates and social workers despite the fact it does not appear to be legal for them to do so. 

Reform and change will not always happen as fast as it should, but the fight goes on!

 

I do not expect to win every case.  I just want an efficient system in which my client gets a fair hearing before a judge who works hard, knows the law, and does not play favorites.  I also expect judges to appoint qualified amicus attorneys who bill honestly and zealously look after children (and actually visit the kids in their homes).   Is that asking too much?  Stay tuned.

 

Greg Enos
The Enos Law Firm                  
 
  
Temp_OrdersWhen Is It Too Late To Enforce Temporary Orders?

Typically, a temporary order expires with the entry of a final judgment. Coleman v. Texas State Dep't of Welfare, 562 S.W.2d 554, 556 (Tex. Civ. App.--Tyler 1978, writ ref'd n.r.e.).  However, the general rule is that the rendition of a divorce decree does not itself nullify any temporary order. Pettus v. Pettus, 237 S.W.3d 405, 416 (Tex. App. - Fort Worth 2007, pet. denied), Ex parte Shaver, 597 S.W.2d 498, 500 (Tex. Civ. App. - Dallas 1980, orig. proceeding); Villarreal v. Villarreal, No. 14-04-00071-CV (Tex. App. - Houston [14th Dist.] Nov. 23, 2005, no pet.)(mem. op.). 

Temporary orders can be enforced after entry of the final decree of divorce unless the decree itself discharges the parties from obligations under the temporary orders.  Ex parte Shaver, 597 S.W.2d 498, 500 (Tex. App. - Dallas 1980, no writ).

The Texas Family Law Practice Manual provides these two different options for a divorce decree regarding temporary orders:

IT IS ORDERED AND DECREED that all obligations and duties for temporary support [and/or other obligations; include specific nondischarged obligations] imposed by the temporary orders of this Court that are not yet discharged shall survive this judgment, and independent enforcement may be sought.

OR

IT IS ORDERED AND DECREED that Petitioner and Respondent are discharged from all further liabilities and obligations imposed by the temporary orders of this Court rendered on ___.

Tex. Family Code Sections 157.004 and 157.005 provide deadlines to file enforcement actions regarding possession and child support, but neither has any specific provision regarding enforcement of temporary orders.  Section 6.506 states simply that violation of a temporary injunction is punishable as contempt, but provides no deadline to bring a contempt action.

Thus,temporary orders can be enforced after rendition or entry as long as the final order does not discharge the parties from their obligations under the temporary orders.  Settlement agreements often do not resolve this issue. 

There is usually a period of several weeks between rendition (when the judge rules) and entry of the final order.  The case law makes it clear that the temporary orders remain in effect until the final order is signed. Pettus v. Pettus, 237 S.W.3d 405, 416 (Tex. App. - Fort Worth 2007, pet. denied).  Some older cases suggest that temporary orders can continue after the final order if the final order does not change those temporary orders.  See e.g., Mathis v. Mathis, No. 04-95-00386-CV, 1996 WL 668849, at *3 (Tex. App.-San Antonio Nov. 20, 1996, no writ) (not designated for publication) (holding that trial court had discretion to continue temporary orders, which stated that they would "continue in full force until the signing of the final decree or until further order" of the court, after entry of decree).

ValueA Business Owner May Testify as to the Company's Value as a Fact Witness

  

A business owner, including a shareholder of a closely held corporation, can testify as to the company's value and does not have to be designated as an expert witness.
 
Red Sea Gaming, Inc. v. Block Investments (Nevada) Co., 338 S.W.3d 562 (Tex. App. - El Paso 2010, pet. denied) is an opinion by Justice Anne McClure, which mostly quotes cases from the Houston 14th Court of Appeals and states in part:

A property owner is qualified to testify to the market value of his property. Redman Homes, Inc. v. Ivy, 920 S.W.2d 664, 669 (Tex.1996). The testimony must indicate that the owner's assessment is based on the market and not on the intrinsic value of the property to him. Jabri v. Alsayyed, 145 S.W.3d 660, 667 (Tex. App. - Houston [14th Dist.] 2004, no pet.). Most recently, the 14th Court of Appeals concluded that the property owner rule applies to corporate entities owning property and that a representative of the corporate owner who is familiar with the market value of the property in question may testify under this rule as to the market value of the property, without being designated as an expert witness. Speedy Stop Food Stores, Ltd. v. Reid Road Municipal Utility District No. 2., 282 S.W.3d 652, 659 (Tex. App. - Houston [14th Dist.] 2009, pet. filed). That court has also held that the sole shareholder and president of a closely held corporation can testify as to the value of property of a corporation. Bower v. Processor and Chemical Service, Inc., 672 S.W.2d 30, 32 (Tex.App.-Houston [14th Dist.] 1984, no writ).

....


Here, Papachado [a shareholder in the corporation] testified as a lay witness, not as an expert. His testimony was rationally based upon his perception of the partnership's market value and was helpful to a determination of a fact issue. See TEX.R.EVID. 701. We thus disagree with Block's reliance upon Collins [v. Collins, 904 S.W.2d 792 (Tex.App.- Houston [1st Dist.] 1995, writ denied)], in which the court focused on expert opinion testimony.  Papachado was not required to be designated as an expert in order to give lay opinion testimony of value. We find no error in the admission of his opinions. 

 

YorkThe "No Shame, No Consequences" Power Trip



Attorney Doug York is taking  cases in the court where his fiance, Judge Alicia Franklin, presides.  If you want a case out of the 311th, York is the attorney to hire.  Both York and Franklin should have enough sense and ethics to realize that York should simply not accept cases that are already pending in the 311th, especially those cases where Franklin has already heard something or where there is already a hearing set.  Franklin should not automatically recuse herself in cases where York allows himself to be hired knowing the case is in his wife-to-be's court.

In Cause No. 2004-02532, Sheikh v Sheikh, a final divorce decree was entered in the 311th in March 2005.  The ex-wife's attorney, Scott Boyd requested a writ of execution on July 18, 2014 to try to collect on the 2005 divorce judgment.  In September 2014, a Fort Bend Constable seized a house belonging to the ex-husband worth about $152,000. The ex-husband hired a lawyer to get a temporary restraining order to stop the writ execution because he claimed he had satisfied the nine year old divorce judgment.  Judge Alicia Franklin on October 3, signed the ex-husband's proposed TRO and temporarily halted all collection efforts.   

   

The ex-wife, who already had a lawyer, hired Judge Franklin's fiance, Doug York, for this case that was obviously pending in the 311th, had been ruled on by Franklin and was set for a hearing on October 9.  On October 7, York filed an Answer for the ex-wife and a motion to recuse Judge Franklin.  Click here to see York's motion to recuse his betrothed.  Without any notice to the other side and with no hearing, Franklin granted York's motion and recused herself on October 8.  The ex-husband's frantic efforts to stop execution on the judgment were temporarily stopped because of York and Franklin's actions.  The case was transferred to the 246th on October 14.    

 

This is not the first time that York has allowed himself to be hired on a case pending in his sweetheart's court.  In July 2014, just after Franklin took office, York allowed the husband in a divorce, Cause No. 2013-72353, to hire him the week before a hearing on temporary orders.  Click here to read the Motion to Recuse York filed on July 18 just before the hearing set for July 22. Unfortunately for York, the wife was represented by Marcia Zimmerman and Ms. Zimmerman is a lawyer unwilling to be intimidated by anyone.  Zimmerman called York's office, York e-mailed Zimmerman and she replied, York replied and then Zimmerman shared the exchange with dozens of attorneys (who then forwarded the e-mails to even more lawyers).  Below are excerpts of the spirited exchange of very different views on ethics between York and Zimmerman.  Ms. Zimmerman gave me permission to use these e-mails.   

 

Monday, July 21, York to Zimmerman:    

 

....First off, I will address your remarks on a professional level because I am hoping you have mis-spoke or that something has been lost in translation.

 

1)  Are you angry because I actually made a business decision and took a case that happened to be in the 311th?  (If this is so, would you be willing to pay me each and every retainer that you think I should pass up just because there is a case in the 311th?  I will be happy to do such).  (I am positive that you would not lose thousands upon thousands of dollars yourself so hopefully this is not what you're angry about).  (If you actually want me to pass up EVERY case that is in the 311th, then that is illogical and I refuse to make such a bad business decision, and I'm sure  people would never think that I should.  If they do, then they too can contribute to giving me money for all retainers I pass up).

 

2)   I do not know what you and Judge Franklin discussed previously, but I'm positive she would not indicate that any business lose money, including yours, when a case could be transferred while keeping all ethics in line and above board.

 

3)  You may be unenlightened on the recusal process.  The case goes to Judge Underwood, who then tells Judge Farr to assign it to another court.  There, it is once again placed in a random delivery (just like a new filing) and assigned to a court WITHOUT any input from me, you, or Judge Franklin.  I now want you to explain how this could be "forum shopping" when I haven't a clue on what court this will land in?  Please tell me you did not make such a serious accusation against myself and Judge Franklin.  I also want you to confirm that you have accused myself and Judge Franklin in being involved with a scheme to "forum shop."  This is a very serious acusation that shall be dealt with immediately.  Neither her or myself take these accusations lightly.  My hope is that you were just uneducated about the process, and that you did not actually accuse us of intentionally "forum shopping."

 

4)  Did you actually want this case to remain in the 311th knowing there is a conflict or something?  Even if you wanted it to remain there, I would still have Judge Franklin recused because we do not want to be blamed for ANY appearance of impropriety.

 

5)  IF (and I say a strong "IF" here hoping you actually did not say such things and it's just been translated wrong), you actually did say those things to my legal assistant, now would be a very good time to apologize.


6)  I am away on vacation, and as such there is nothing more for me to respond to, or call you because you "demand an explanation."  I will not disrupt any further vacation to address this in hopes you spoke out of merely not knowing how things work.   

 

Thank you, and I will address any further issues upon my return,

 

-Doug York

  

Monday, July 21, Zimmerman to York:


....And yes, I think you should refuse to take cases in the 311th because it is forum shopping.  Someone can hire you if they don't want to be in that court.   There are eight other family courts and I'm sure you will make plenty of money if you refuse 311th cases.   I guess we have a difference of philosophy.  Good to know for the future.     

 

Monday, July 21, York to Zimmerman:

 

This is a new filing.  To possibly lose thousands upon thousands of dollars is so illogical I won't even address that.  Are you accusing me of forum shopping in this case?  

-Doug York
 

Monday, July 21, Zimmerman to York:   

 

No, I'm not accusing you of anything other than taking a case that you knew was in your fiance's court and I think you should have refused or referred it because it creates the appearance of impropriety.    Regardless of your motives (which appear to be money), the result is that a party can get out of the 311th if they hire you.   

 

Monday, July 21, York to Zimmerman: 

 

My motives are to assist my clients in their time of need.   Your position I disagree with wholeheartedly as it would restrain clients from THEIR choice of attorneys. They have that right.   Since I cannot understand your position we'll leave it at that.  Thank you for clearing up the fact that you have not accused me of impropriety and that I have done nothing ethically wrong. 

-Doug

 

Wednesday, July 23, Marcia Zimmerman to many attorneys:

 

You are receiving this because you may be interested in the email exchange which took place while Mr. York was vacationing in Europe with Judge Franklin.

 

The case at issue is not a new filing but has been pending in the 311th Court since December 3, 2013.

 

Marcia Zimmerman

 

____________________________________________________  

 

After I saw this e-mail exchange and talked to both Zimmerman and York (who returned my call from Europe), I wrote an article in the August 3 edition of  Mongoose that provided advice to any lawyers whose relative was a family court judge.  Here is part of what I wrote at the time, which I can only assume that York missed while on his three week European vacation with Judge Franklin:  

 

So, here is my unsolicited advice to any lawyer whose spouse (or domestic partner or fianc� or parent or child or sibling) is a judge:

  • If you file a new case and it lands in your spouse's court, you keep the case and the case is again randomly reassigned. No one can say you are taking advantage of the system in that situation.
  • If a client comes to you with a case that has been pending in your spouse's court for a while and hearings have been held, you do not take the case unless all of the opposing attorneys have no problem with the fact that the case will be removed. The best practice is simply to turn away such cases because some attorneys may feel uncomfortable telling you "no" in a case where your spouse is the judge
  • If a new case filed by someone else lands in your spouse's court, no hearing has been held and the respondent wants to hire you, I think that as long as the client knows the case will be moved and as long as you are not delaying an already set hearing and only if opposing counsel agrees, you can take the case and it will be transferred to another court. If a hearing is already set and the opposition does not want it reset or wants the case to be in your spouse's court, then you decline the case and send the prospective client to another lawyer.    

. . . . 

 

Any lawyer married to a judge enjoys a lot of benefits, including socializing with other judges and access to information most attorneys can only guess at (unless they read this newsletter). A lawyer married to a judge probably gets business just because people assume he or she has special clout in the court. On the other hand, being married to a judge has some downsides, including all of the boring political events that must be attended. A judge's spouse cannot freely speak her mind on Facebook and certainly cannot appear to throw her weight around with other lawyers simply because she is married to a judge. Most importantly, the spouse of a judge owes it to the judge not to take any cases that might potentially embarrass the judge or cause people to think there is something improper going on.  

 

A judge's spouse must err on the side of caution and turn away cases to avoid the appearance of reverse forum shopping.    It would be really bad if attorneys hired the lawyer-spouse as co-counsel just to get cases out of the judge-spouse's court.


  
be him
"Together, attorneys can improve our family courts!"

Click here to be inspired by an amazing video of a mongoose taking the fight to a pride of lions. I have seen the same look of surprise that those lions showed on the faces of a few judges in the last few years. 
   
bridges  
Porn
Supreme Court Justice Suspended Because of Porn E-mail Scandal


Click here to  read about the suspension of a Pennsylvania Supreme Court Justice over his participation in a state government pornographic email scandal that involved employees of the attorney general's office.


VotingVoting Has Begun and Democrats in Harris County Have Hope! 

Early voting for the Texas November 4, 2014 general election started on October 20 and runs through October 31.  Harris County registered voters can (with proper photo ID) early vote at any of 41 early voting sites.   Click here for a schedule of early voting and map showing all the different early voting locations.

There is actually hope for Democrats in Harris County according to a public opinion poll conducted for KHOU by the Survey Research Center, University of Houston Center for Public Policy & Rice University.  The statewide survey was of 781 likely voters and the Harris County survey was of 325 likely voters.  The Harris County margin of error is +/-5.4%.  The survey conducted from September 22 - October 15, 2014 showed:

Governor

District Attorney

Party Affiliation

Plans to Vote Straight Ticket


Click here to read about a recent survey of professional political pollsters who collectively say fewer people are responding to polls this year, compared to 2012.  Most pollsters expect greater polling error this year - that is, the difference between what the latest pre-election polls show and actual vote margins.  One big problem is too few home phone lines and no sure way to reach cell phone users (which under counts the young and poor). If you are just interested in politics and analysis of the 2014 and 2016 campaigns, you need to click here  to go to Electoral-Vote.com, the best web site analyzing political trends I know of.

Lest we forget history, in 2010, the last off-year election, Bill White barely beat Rick Perry in Harris County 50% to 48%, yet the Republican judicial candidates all won.  In 2010, straight ticket voting went 290,355 Republican and 240,479 Democratic.  The early voting and mail-in ballot carried the day for the Republicans because the straight ticket voting was about even in ballots cast on election day.  The Republican family court candidates in 2010 all won with about 55% of the vote.

It is not clear how to interpret this, but the number of voters showing up in person this year at Harris County's 41 early-vote locations was down by 25 percent for the first two days of early voting compared to 2010.  However, the number of mail-in ballots received was up 66% over 2010.  This could be significant because Republicans in Harris County have always won big in early voting and mail-in ballots and the Democrats did much better in votes cast on election day.  This year, Battleground Texas made a concerted effort to get older Democrats to vote by mail to counter the traditional Republican advantage.  We will not know for sure until votes are counted, but this could mean that fewer Republicans are voting early and the Democrats may have matched them in mail-in ballots.  

I will send out an early morning Election Results issue of the Mongoose on November 5 to let you know who won.

 Bar_PollBar Poll: Good Thing Lawyers Don't Elect Judges? 

The Houston Bar Association Judicial Preference Poll results were good news for a few incumbents: Judges Bradshaw Hull, Dean and Devlin.  Judges Phillips and Lombardino proved not too popular with attorneys, but Charley Prine was favored over his opponent.  Judge Alicia Franklin and Republican nominee John Schmude were crushed by their opponents, Sherri Cothrun and Chip Wells.


I will always a remember a former Associate Judge, who explained in a "Father Guido Sarducci" voice that his boss, the elected judge, knew that attorneys do not elect judges, they just supply the money for the judges to run with.  Fortunately for some candidates, judges are indeed elected by a vast pool of voters who cannot possibly know them or their qualifications.  Straight ticket voting, turn out and the whims of the 10% of voters in the middle will determine which judicial candidates are elected in two weeks.

 
 
  SlaveryA Horrifying Book about American Capitalism and Slavery 

American exceptionalism causes many to truly believe the United States is the best, most free nation that ever existed.  It is possible to love our country but still acknowledge some aspects of the past that are shameful.

The Half Has Never Been Told: Slavery and the Making of American Capitalism by Edward Baptist is an amazing book that explores in surprising new detail how slavery and capitalism developed in the United States.



The organized horror and inhumanity of slavery that played such an important role in the growth of the entire country was as bad as anything Stalin did in the Soviet Union or Belgium did in the Congo and worse on a grander scale than what the British did to the Boers in South Africa (when the phrase "concentration camp" was invented).

It is shocking to read about mortgages and repossessions on human beings, fancy financial products that allowed investors all over the world to finance collateralized people, and the cruel methods used to increase productivity in the cotton fields.  The reader is introduced to terms such as "the pushing system" or "fancy girl" and learns of the Financial Panic of 1837 (which should make the U.S. now cut a little slack for Latin American countries that default on their loans since that is what we did back then), and the forced migration of perhaps a million slaves to  labor camps on what was then the frontier.

Some of the facts in this book will astound you. For example, in 1840, about 20% of the entire wealth of the United States was the total value of enslaved people.  Extremely fair skinned people were held as slaves, because a person's status as a slave was determined by his or her mother's status.  If a woman, who was a slave, was one-sixteenth black (great-great grandmother was black) and she was impregnated by a white owner, then her child was a slave even if he would have looked whiter than I do.  Thomas Jefferson, a slave owner, wrote a letter in 1815 that explained the rules on who was black and who was a slave that included detailed mathematical explanations.



One story in the book of a divorce of a slave slave owning couple in Louisiana should have particular resonance with family lawyers, since the men, women and children the spouses owned were treated like we would handle furniture in a divorce today. 

This book provides a glimpse into our country's past that is harrowing but essential for all Americans to know.  Our kids never get the full picture of slavery in history class or the shameful truth of how slavery fueled the growth of our young country.

Amazingly, the sub-prime mortgage bubble that collapsed our economy in 2007 was presaged by a similar economic bubble involving slaves in the 1830's.  Just as sub-prime mortgages were securitized in the last decade and sold all over the world as an investment, so were American slaves in the 1830's.  The southern states' legislatures charted associations which sold bonds all over the U.S, and Europe.  The money raised with the sale of the bonds was loaned to landowners and speculators to buy more land and slaves, which were the collateral for the loans.  The value of slaves surged and eventually the bubble popped and the result was the Panic of 1837, that brought the U.S. economy to its knees and caused a long, deep recession.

There is a lot to be learned from history and Americans would do well to know more about our nation's past, including the events that are not so glorious and inspiring.







 


  




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. 


Attorney Greg Enos