Dividing Assets In A Texas Divorce- Memberships

April 30, 2007

Courts cannot divest a spouse from membership in an organization such as country clubs and other groups and award it to the other spouse.  Cluck v. Cluck, 647 SW2d 338: 

Since the membership stock has a contingent redeemable value of $1,000.00, the trial court could and did take into consideration this as an asset of the community in dividing the community estate of the parties. However, we are of the opinion that the trial court had no authority to divest the appellee of membership in the club. We view the stock certificate as merely an indicia of the right to membership analogous to a membership card in any voluntary association, and personal only to the appellant. Courts have been reluctant to interfere with the internal management of a voluntary association.”

 

However, the courts can value the memberships and reapportion the division of the estate to take the value of memberships into account.


Payment of Contractual Alimony May Not Be Enforced by Putting Debtor in Jail

April 23, 2007

In Re Alvin Green, No. 06-0496 (Tex. Apr. 20, 2007)(per curiam)(contractual alimony not enforceable by contempt, habeas granted)


Alvin Green argues he cannot be imprisoned for nonpayment of a contractual alimony obligation incorporated into his divorce decree. The Court agreed that a court order to pay spousal support is unenforceable by contempt if the order merely restates a private debt rather than a legal duty imposed by Texas law.

Because the district court’s decree was not “spousal maintenance” ordered under the Family Code but rather was issued solely on the basis of the parties’ private alimony contract, they granted Alvin’s writ of habeas corpus and order him discharged. Source: Wolfgang Demino’s well researched “Texas Appellate Decisions and Commentary“. 


Texas House Bill 180- “Covenant Marriage”

April 23, 2007

House Bill 180 by Rep. Bill Zedler (Arlington), the “covenant marriage” bill, is scheduled for debate by the full House of Representatives on Tuesday, April 24th.

The bill is extremely poorly drafted and does not address numerous issues that must be addressed to successfully implement a new kind of marriage.  The bill is opposed by Family Law Section of the State Bar of Texas because it is so poorly drafted.  Your author is also opposed because it is clearly bad policy (as outlined in my other blog).

Please call your Texas House member’s office Monday or before noon on Tuesday. Ask for the aide who works on family law issues, specify the bill and state your views.

Click here to find out who represents you and their contact information.


Frozen Embryo Custody- The Man’s Perspective

April 20, 2007

Here is a story from The Daily Mail (UK) which presents the  often unheard perspective in the frozen embryo custody debate- the sperm donor and his struggle for his right to not become a biological father. 

Howard Johnston’s relief is palpable. For five years he has been on tenterhooks, nervously waiting for the final ruling on whether his former fiancee should be allowed to make him an unwilling father in order to fulfil her dream of becoming a mother.

This week, his wait finally came to an end as 35-year-old Natallie Evans was told she could not use the six fertilised embryos she and Howard had had frozen in 2001 shortly before the cancer treatment that left her infertile.

The Grand Chamber of the European Court of Human Rights, her last legal option, ruled unanimously that she could not use the embryos without Howard’s consent – which he had withdrawn when they split up in 2002.

For Howard, 30, the ruling means that he can put the trauma of being publicly branded a baby killer behind him and move on with his life.

But he insists that the implications of the decision reach far beyond his personal rights – and go right to the heart of what it means to be a father in today’s society.

In his first newspaper interview since the historic judgment, Howard, a successful IT consultant, says: “Had the European Court of Human Rights supported Natallie’s claim that she has the right to motherhood whether I consented or not, it would have effectively cut men out of the process altogether.

“I believe very strongly that men should not be used as sperm donors to father children without their permission. The idea that men may one day become virtually irrelevant in the creation of life – as some suggest they could and even should – is abhorrent to me.

“A father has as important a part to play in a child’s life as a mother so his rights should be the same. That the law was upheld gives me hope that the importance of a man’s consent in conception will be safeguarded in the future.’

Since he withdrew his consent for the embryos to be used, Howard, from Cheltenham, Gloucestershire, has been vilified in some quarters for heartlessly denying his former fiancee her last chance to become a mother.

But he insists that his unwavering refusal to give in to her repeated pleas was borne of his strong sense of what the role of a father should involve and that the scenario Natallie was proposing would betray those principles.

“I have attracted negative comments because I have fought for what I believe in. Just yesterday, a woman called me at home and told me that what I had failed to understand was that those six embryos were human beings that had been offered the chance of life but I had destroyed it. It was very disturbing.

“I’ve had to live with going through this in public and it has been incredibly stressful. I’ve tried to put it to the back of my mind but every day I’ve thought about it and worried that eventually Natallie might have been allowed to go ahead and bring a child of mine into the world against all my wishes.

“But my stance has always been about the welfare of the child. To me the bedrock of any decision over whether to go through the process of using embryos to try to have a baby should be two people who are united. The law requires both partners’ consent and to me that makes absolute sense.

“Natallie wanted to have my child and bring it up with her new partner without any involvement from me but I have never been able to contemplate that.

“I would have known he was mine and constantly thought about him. That child would have known he wasn’t wanted by his father, and what impact would that have had on his life?

“And it would have been my name on the birth certificate so what would have stopped Natallie approaching me ten years down the line for financial help?”

Howard is an intelligent and fiercely rational man and it has been all too easy for him to be portrayed as cold. He says this is far from the truth.

“The friends I’ve had for many years know me as a very sociable, positive guy who loves going out and writing music.

But they also know that although I’ve tried not to change as a result of the court case, it has been very hard at times for me to carry on my life as normal.

“Whenever I meet new people, I’m always worried about what their reaction to me will be: will they think I’m a callous person?

Everyone has seen my ex-girlfriend on TV, pleading with me in extremely emotional terms and I know it must have affected people’s views of me. I’ve had very difficult times but my friends and family have been very supportive.’

Natallie has found love with new partner Dave Richardson, a cable jointer, but Howard has not had a serious girlfriend since their relationship ended.

He says: “I haven’t met anyone I have wanted to become serious with. I hope that if I met someone I really liked I wouldn’t be held back by the past.”

He hopes to be a father one day and envisages himself giving his children the kind of stable upbringing his parents Andy and Fiona gave him and his older sister.

“There’s so much more to being a father than just the biological or financial aspect. I see myself being involved in every aspect of the child’s upbringing – teaching him to read, shaping his life. I want to be a real father or not at all.”

Ironically it was not so long ago that Howard envisaged creating such a happy, stable family with Natallie.

They met in 1999 when they were working in a call centre for Virgin Mobile in Melksham, Wiltshire.

They fell in love and moved in together, despite their different backgrounds – Howard, then 22, was the Sherborne educated, university graduate son of a retired Merchant Navy officer while Natallie, five years his senior, was twice divorced and had grown up on a council estate.

In June 2001, Howard proposed to Natallie under the Eiffel Tower – with a diamond solitaire ring.

Natallie has claimed that at this stage they were trying for a baby. When she failed to conceive the couple were referred to the Bath Centre for Assisted Reproduction.

Howard says: “I thought we were there to get to the bottom of whether something was the matter with Natallie, not to help us have a baby. I was in my twenties and had no intention of becoming a father then. It was a question of Natallie’s health to me.”

In October 2001, the couple were told that pre-cancerous tumours discovered on Natallie’s ovaries would have to be removed.

It was then that they decided to freeze the embryos, though Howard says: “I wasn’t really thinking about babies at that point – just that the woman I loved might not survive.”

But after the operation, Howard says, Natallie fell into depression and became very difficult to live with.

“She kept telling me she didn’t feel like a real woman any more. She became incredibly possessive and, in the end, I couldn’t handle it any more and left.”

A month after they split, the clinic told both parties that since Howard had withdrawn consent, the embryos would be destroyed.

Howard says Natallie sent him a text message saying: “You are going to pay for this. Your name is going to be all over the papers.”

Since then the case has been heard by the High Court, the UK Court of Appeal and the European Court of Human Rights. Now Howard hopes both he and Natallie can move on.

“I hope Natallie does go on to become a mother because it is what she has always dreamed of. We talked about other options such as adoption or having a baby from donor eggs. She told me she could love any child as her own.

“I don’t hate her – part of me feels sorry for her. Now I just want it all to be over so I can get on with my life.”


Contract Law Found to Govern Disposition of Frozen Embryos in Divorce

April 20, 2007

When a couple divorces, who owns their frozen embryos? Can a woman have them implanted despite her ex-husband’s objections?

In Roman v. Roman, a case of first impression in Texas, Houston’s 1st Court of Appeals considered the merits of a property division in a divorce proceeding decided by Lisa Millard, presiding judge of the 310th District Court in Harris County. Millard had awarded three frozen embryos to the wife as part of a “just and right” division of community property, despite the parties’ prior written agreement to discard frozen embryos in the event of divorce.

On Feb. 9, after reviewing the “scant case law on the subject” from other jurisdictions, the 1st Court reversed the judgment and remanded Roman to the trial court “to enter an order consistent with this opinion and with the parties’ agreement that the frozen embryos be discarded.”

Rebecca L. Reitz, a partner in Houston’s Gay & Reitz who represents appellee-wife Augusta Roman, says she has until today to file a motion for rehearing en banc, which she plans to do. If that outcome is not favorable, she says, she plans to appeal the case to the Texas Supreme Court. Until all avenues of appeal have been exhausted, the embryos will remain frozen, Reitz says.

The lawyers for both former spouses agree that the court sidestepped the tough constitutional issues.

Gregory B. Enos, the attorney for appellant-husband Randy Roman, says the court was able to completely avoid the constitutional issues, including those he raised about the right not to have children against one’s will. “So that is still unsettled in Texas,” he says. “But I guess they didn’t have to address it, if they were going to rule solely on the contract.”

Reitz agrees that the 1st Court took the “noncontroversial way out” by skirting constitutional issues and narrowly focusing on contract issues. “They don’t want to get into the question of, ‘Is it a child? Is it a life? Is it not a life? Does the wife have a greater constitutional right to procreate versus the husband’s right not to procreate?’” Reitz says. “They take the safe way and say, ‘It’s just a little boring contract case, and we’re just going to say they signed an agreement and that it should be upheld.’” It becomes a lot messier when it becomes a constitutional balancing case, she adds.

Indeed, the 1st Court’s opinion, written by Justice Evelyn V. Keyes, notes that the court answers the issue “as narrowly as possible” in anticipation that it ultimately will be resolved by the Texas Legislature.

Justices Tim Taft and George Hanks Jr. joined in the opinion, which lays out the following facts and procedural history: Married in 1997, the Romans unsuccessfully tried to have children. In August 2001, the couple met with Dr. Vicki Schnell, medical director at the Center of Reproductive Medicine. Following laparoscopic surgery and artificial insemination attempts, the couple decided to try in vitro fertilization.

In March 2002, the parties signed various documents at the center, located in Webster, including an Informed Consent for Cryopreservation of Embryos (the embryo agreement) in which, in paragraph 2, the parties authorized storage of their embryos in a frozen state until such time as the center deemed it appropriate to transfer them to the wife’s uterus, and both husband and wife agreed to the transfer, according to the opinion. Section 10 stated that the parties authorized that the embryos would be discarded in case of divorce. The agreement contained a provision allowing the parties to withdraw consent to the disposition of the embryos and to discontinue participation in the program.

In April 2002, on the eve of a scheduled implantation, Mr. Roman expressed a change of heart and withdrew his consent, according to the opinion. He filed for divorce in December 2002. Ms. Roman counterclaimed, alleging fraud and intentional infliction of emotional distress. The parties reached a final binding agreement regarding all marital property except for the frozen embryos. At a bench trial before Millard, Mr. Roman asked that the embryos be destroyed pursuant to the embryo agreement. Ms. Roman requested that the embryos be implanted, so that she could have a biological child, and that Mr. Roman have no parental rights, according to the opinion. On Feb. 4, 2004, Millard awarded the embryos to Ms. Roman. Mr. Roman filed a motion seeking parental rights to any child born therefrom, pursuant to §160.7069(a) of the Texas Family Code. He filed a motion for new trial March 29, 2004.

Mr. Roman argued in his brief to the 1st Court that the trial court: 1. failed to declare the rights of the parties pursuant to a contract; 2. erred in awarding the three frozen embryos to his ex-wife; 3. erred in failing to make findings of fact and conclusions of law concerning constitutional issues; 4. violated his constitutional rights by awarding the frozen embryos to Ms. Roman; and 5. erred in awarding frozen embryos to Ms. Roman when he, the husband, had withdrawn his consent.

As noted in the 1st Court opinion, Ms. Roman did not dispute signing the embryo agreement, but contested the agreement’s validity and interpretation. Reitz contends that the trial court could have chosen not to enforce the agreement, given that other state supreme courts have found similar agreements to be invalid. In addition, Ms. Roman argues in her appellee’s brief that there was ample evidence that the document did not reflect a meeting of the minds concerning the IVF process and the disposition of resulting embryos. She asserts in her brief that much of the case law on this subject has held that these consent forms are not binding if a party later changes his or her mind concerning the disposition of the embryos.

After reviewing provisions of the Uniform Parentage Act in the Texas Family Code, the 1st Court concluded that none of the sections include a legislative directive on how to decide what to do with the embryos in case of contingencies such as death or divorce, “[n]or is there anything in the case law that is incompatible with the recognition of the parties’ agreement as controlling.”

The court looked to new legislation addressing gestational agreements and concluded that Texas public policy “would permit a husband and wife to enter voluntarily into an agreement, before implantation, that would provide for an embryo’s disposition in the event of a contingency, such as divorce, death, or changed circumstances.”

The court then launched into a contract analysis of the embryo agreement. Absent ambiguity, the court said, it interprets a contract as a matter of law. The court noted that neither Mr. Roman nor Ms. Roman withdrew consent to the agreement’s provision that the frozen embryos be discarded in the event of divorce. Nor did they withdraw consent to the provision under §11 that, if they could not agree on the disposition of the embryos, the frozen embryos would be discarded.

The court disagreed with Ms. Roman’s claim that she understood the embryo agreement to apply to remaining embryos only after implantation had occurred, and that she never agreed to destroy all the embryos without an opportunity to get pregnant. The court said that adopting such an interpretation would require imputing language to an unambiguous contract that “isn’t present and disregarding language that is.”

The court also found that the embryo agreement’s language in §10 regarding the disposition of frozen embryos could not be clearer. Section 10 stated: “If we are divorced or either of us files for divorce while any of our frozen embryos are still in the program … [t]he frozen embryo(s) shall be … [d]iscarded.” The court noted that the parties could have chosen other options, such as releasing the embryos to either party in the event of divorce — but did not.

The 1st Court found that the trial court abused its discretion when it “improperly rewrote the parties’ agreement, instead of enforcing what the parties had voluntarily decided in the event of divorce.”

Enos, managing partner of the Enos Law Firm in Webster, Texas, says he believes that Roman is an important decision for members of the medical establishment, who he predicts will be happy that an “agreement that patients sign in advance is going to be binding in telling people what they need to be doing.”

Schnell and the Center of Reproductive Medicine became parties to the Roman litigation after Ms. Roman filed a motion for leave to add them as parties Sept. 12, 2003. In a written statement, Heather M. Morlang, one of the lawyers who represented Schnell and the center, describes Roman as unique, not only because it is a case of first impression in Texas, but also because it “draws attention to the complexities facing physicians who work with assisted reproductive technologies (ART).”

Morlang, an associate with Kacal, Adams & Law in Houston, notes that many physicians, such as Schnell, request that couples consider such possibilities as divorce or death of a spouse before entering into ART programs and have couples sign agreements reflecting their choices, based on their personal beliefs, should those scenarios arise. “This process generally offers the physicians some stability and predictability in advance of entering into ART treatments,” explains Morlang. “With Roman … the Houston First Court of Appeals suggests to physicians … that such agreements, if drafted properly and with proof of a meeting of the couples’ minds, are consistent with Texas’ public policy and will be enforced.”

10,000 FROZEN EMBRYOS

Scientific advances such as IVF create new ethical and moral dilemmas, says Houston family law solo Teresa Waldrop. Typically, the responsibility of defining the parties’ rights will fall on the courts, until the legislature gets involved. For Waldrop, the opinion is noteworthy because it makes it clear that agreements governing disposition of embryos are not against public policy. Waldrop believes the court’s position is reasonable, and that contract construction is an appropriate approach. The consent is an advance directive, she adds: “We need enforceability to prevent disputes.”

Houston family law attorney Earle S. Lilly, a partner in Piro & Lilly, has extensive experience litigating frozen embryo cases, including the nation’s first custody battle over a daughter born of a frozen embryo. He believes that the trial and appellate courts properly treated the case as involving a “nonreligious issue.” This is “not an issue of morality, not an issue of the right to children, but a property right, just as if it were several acres of land,” says Lilly. “It is a contract right, a property right, and they properly decided that case [Roman] on that basis.”

Houston family law attorney Randall B. Wilhite, shareholder, president and managing director of Looper Reed & McGraw, agrees that the 1st Court deftly avoided becoming mired in constitutional law issues by resorting to pure contract analysis. “Although politicians, jurists, scientists, philosophers and religious leaders may debate whether an embryo is life or just potential life, like it or not, the clear state of our law is that it is an item of property,” says Wilhite. As such, it can be the object of a valid contract between competing claimants to the property.

Because the court ruled that the contract was not against public policy, and that the contract was properly formed, it was enforceable, he says. The significance of this opinion lies in its presumption that an embryo is an item of property, and that individuals contracting about the future of embryos they helped create may validly enter into contracts about them. To that extent, it provides more certainty to other couples in similar situations, notes Wilhite.

University of Houston Law Center professor Peter Linzer, who teaches constitutional law and contracts, and is of counsel at Vascoe Valdes, believes the opinion makes sense, is thoughtful and on point. “There is no good answer,” he says. “There is going to be heartbreak or irritation one way or the other.” But arguments that the woman should have greater autonomy than the man don’t work here, he says.

Linzer takes issue with the court’s dismissive treatment of Ms. Roman’s assertions that the embryo agreement’s reference to “remaining” embryos is ambiguous. Linzer believes the meaning of “remaining” was not self-evident even under a plain-meaning rule. The fact that the 1st Court disregarded Ms. Roman’s claim of ambiguity, however, is in keeping with Texas’ strict approach to contract construction, he says.

Enos says that his research indicates that more than 10,000 frozen human embryos are stored in Texas. “This means that the disposition of frozen embryos will increasingly become an issue,” he says.

Notes Enos, “Pretty much every fertility clinic has a written agreement of some similar nature, so they may even change their agreements a little to incorporate that ruling in the decision. If it comes up again, a trial court in Dallas or Harris [counties] would almost be bound to follow this decision, unless some other court of appeals rules differently within the state of Texas.”

Source: law.com


Woman Seeking Frozen Embryos Loses Case

April 20, 2007

Although not precedent, the following case has the same facts as the current case of Roman v. Roman which is currently being considered for consideration by the Texas Supreme Court:

 From: www.boston.com:

STRASBOURG, France –A British woman left infertile after being treated for ovarian cancer has no right to frozen embryos against the wishes of her former fiance, who provided the sperm, the European Court of Human Rights ruled Tuesday.

The court’s Grand Chamber, a panel of 17 European judges, confirmed a lower court ruling upholding a British law that stipulates consent from both parents is needed at every stage of the in vitro fertilization process.

Tuesday’s verdict cannot be appealed, and the frozen embryos will be destroyed.

The court said it felt “great sympathy” for Natalie Evans, but ruled that her desire to become a parent should not be accorded greater weight than her former fiance’s right not to have a genetically related child with her.

Evans, 35, was left infertile after receiving treatment for cancer, but in 2001, prior to the removal of her ovaries, six of her eggs were fertilized by Howard Johnston’s sperm through in vitro fertilization.

The couple then split up, and Johnston withdrew his consent for her to use the embryos. Evans took him to a British court, but judges there rejected her legal appeals to implant an embryo, saying consent from both partners was needed and ordering the destruction of the embryos.

Evans claimed the British law breached her rights under the European Convention on Human Rights. She said her right to privacy and family life, and the embryo’s right to life, were being violated by Johnston’s refusal to grant permission for use of his sperm. She had also argued his attempt to prevent her from having the baby was discriminatory.

But the court said there was no violation of the convention, and upheld its earlier ruling that said it was up to national law to define when the right to life began. Under British law an embryo does not have independent rights or interests.

“I am distraught at the court’s decision today. It’s very hard for me to accept that the embryos will now be destroyed and that I will never become a mother,” Evans said in a statement.

Johnston said that, while he sympathized with Evans, he was relieved that “common sense has prevailed.”

“I want to be able to choose when I become a parent,” he said.

The European court requested a stay of an order to destroy the embryos in February 2005 while it considered Evans’ case.


Local Rules for Harris County Family Trial Division

April 16, 2007

 

RULES OF THE JUDICIAL DISTRICT COURTS
OF HARRIS COUNTY, TEXAS
FAMILY TRIAL DIVISION

(Amended effective October 31,2003)

RULE 1.   OBJECTIVE 1.1    Purpose of the Rules.  Obtaining a just, fair, and impartial adjudication of the parties’ and the children’s rights is the purpose of these rules. To achieve this goal efficiently and inexpensively, while complying with procedural rules and substantive law, these rules encourage using alternate dispute resolution in all appropriate cases. RULE 2.  TRANSFER OF CASES 

2.1     Multiple  Suits.  When a suit filed in a Family Trial Division court is in any way terminated (by non-suit or otherwise), a subsequent suit or cause of action involving the same parties or the same subject matter shall be filed in, or transferred to, the court that first had jurisdiction of the parties or subject matter.  This rule applies to all controversies, including divorce, support, conservatorship, and all matters incident to them, whether sought by original proceedings or by modification, clarification or enforcement of a former order, judgment or settlement agreement. When such a situation is disclosed for the first time after the hearing begins, the judge of the court shall immediately order the suit transferred to the court in which the prior suit was filed.

2.2       Enforcement of Consent Decree or Contract.  In accordance with General Assignment Order of September 1, 1977, any action for the enforcement of a consent decree or contract arising out of or in conjunction with any action previously filed in any of the courts of the Family Trial Division shall be filed in the same court,

2.3     Transfer. 

2.3.1    Continuing, Exclusive Jurisdiction.  All provisions of the Texas Family Code (“Tex. Fam. Code”) regarding continuing, exclusive jurisdiction and transfer shall take precedence over these rules.

2.3.2   Later Filed Case.    If a case is filed in which there is a    substantial identity of parties or subject matter as in a previously non-suited or dismissed case, the later case shall be assigned to the court where the prior case was pending. When such a situation is disclosed for the first time after the hearing begins, the judge of the court shall immediately order the suit transferred to the court in which the prior suit was pending.

2.4     Consolidation.  A motion to consolidate cases shall be heard in the court where the lowest numbered case is pending. If the motion is granted, the consolidated case will be given the number of the lowest numbered case and assigned to that court.

2.5       Severance.  If a severance is granted, the new case remains assigned to the court where the original case is pending, bearing the same file date and the same number as the original case with a letter designation;  provided, however, that when a severed case has previously been consolidated from another court, the case shall upon severance be assigned to the court from which it was consolidated.   

2.6    Presiding for Another.  In all cases where a judge signs an order on behalf of another court, the case shall remain in the original court.

 2.7    Improper Court.  If a case is on the docket of a court by any manner other than as prescribed by these rules, the Administrative Judge of the Family Trial Division shall transfer the case to the proper court.

RULE 3.  FLOW OF CASES

 3.1    Appearances of Counsel.  Any attorney representing a party in 
         a case shall file an appropriate initial pleading with the court, be it a 
         Petition, Answer, Notice of Appearance as Attorney of Record, or Motion and Order for             Substitution of Counsel. The pleading shall contain all information required under Rule             57 of the Texas Rules of  Civil Procedure (“T.R.C.P”).  

3.2   Ancillary Matters 3.2.1  Ancillary Docket.  The ancillary docket consists of:

1.)    Temporary injunctions;

2.)    Temporary orders in original proceedings;3.)    Writs of habeas corpus;4.)    Motions for enforcement including contempts, except those brought under

Title 5, Subtitle D, Chapter 231, Tex. Fam. Code;

5)      Temporary receiverships;

6)      Motions to transfer;

     7)  In the discretion of the court, as may be limited by the Tex. Pam. Code,                 hearings for temporary orders in suits for modification of a final order; and  

      8)   All matters preliminary to trial on the merits. 3.2.2   Preference for ADR. In the discretion of the court, preference in setting hearings shall be given to matters in which the parties have participated in alternate dispute resolution procedures. 3.3   Docket Call Procedures.

3.3.1   Attorneys and pro se litigants who do not expect to be on time or present in the courtroom during docket call must notify the court and the opposing side of this fact.

 3.3.2  Attorneys and pro se parties who  will be late for docket call must give the court and opposing side notice of their estimated time of arrival at court and the reason for the delay. If the attorney is late because he or she must appear in another court at the same time, the clerk must be notified not only that the attorney will be late (as above), but also  the specific court(s) in which the attorney will be appearing.

3.3.3   If the moving party (if pro se) or the party’s attorney does not appear in the courtroom within thirty (30) minutes of docket call, that party’s motion may be passed by the court at the request of the responding party .

 3.4     Telephone Conferences. Use of telephone conferences between judges or associate judges and all attorneys in a case is encouraged for non-evidentiary matters.  Telephone conferences shall be scheduled through the court coordinator.
      

 3.5     Interview of Child / Child’s Testimony.  In all cases in which the court deems testimony of a child to be necessary or required by statute, the attorney wishing to have the child interviewed shall arrange a specific time through the court coordinator for the court to interview the child. No party is to bring a child to the courthouse to testify without prior arrangement pursuant to this rule, unless the child’s attendance is required by court order including a writ of habeas corpus or attachment. The attorney or pro se party who is responsible for the child’s attendance at court shall immediately notify the court coordinator of the child’s presence in the courthouse. The child shall not be brought into the courtroom without the express consent of the judge or associate judge.3.6    Scheduling Orders.  It shall be the duty of an attorney or pro se party entering a pending case to ascertain from the court whether a Scheduling Order has issued and if so, to obtain a copy of the Scheduling Order from the District Clerk’s office. Notwithstanding the foregoing, it shall also be the duty of the Petitioner or Movant’s attorney of record in a pending case in which a Scheduling Order has issued to provide a copy of the Scheduling Order to any pro se party who has made or makes a general appearance in the pending case. 3.7    Trials.         3.7.1  Manner of Setting.  Cases shall be set for trial by order of the court. 

3.7.2  Date of. Setting.  Cases shall be set for trial for a date certain.  If a case is not          assigned to trial by the second Friday after the date it was set, whether because of a               continuance or because it was not reached, the court shall reset the case to a date               certain. Unless all parties agree otherwise, the setting must comply with all
            requisites of T.R.C.P, 245.                  

3.7.3  Preference for ADR.  In the discretion of the court,      preference in setting cases for trial shall be given to matters in which the parties have participated in alternate dispute resolution procedures. 3.7.4   Assignment to Trial.  A case is assigned to trial when counsel are called to the court to commence the jury or non-jury trial on the merits. For the purposes of engaged counsel, no court may have more than two cases assigned to trial at any one time, one before the judge and one before the associate judge. 3.7.5   Open Weeks.  Except with the consent of all parties, and the court, no cases will be assigned to trial on the merits nor for ancillary hearings during:

1)      The week of the Second Administrative Judicial Region Conference (March);

2)      The week of the State Bar Convention (June);

3)      The week of the State Bar of Texas Advanced Family Law Course (August);4)   The week of the Conference of the Judicial Section                     (September); and5)   The last two weeks of December.

3.7.6   Continuances.  Continuances shall be governed by T.R.C.P.   251 through   254.

 3.8   Judgements and Orders. All judgments and orders must be submitted to the court for signing within ten (10) days from the date of rendition, unless otherwise directed by the court. The party who is directed to prepare the judgment or order shall furnish all opposing parties with a copy of the proposed judgment or order at least five (5) days prior to entry date. All judgments and orders submitted for entry must be signed by the judge within seven (7) working days from the date that the judgments or orders are submitted for entry, unless the judgment or order is rejected by the court. All judgments or orders in uncontested matters (except for settlements made pursuant to T.R.C.P. 11) and in default matters (where citation has been served and there has been no answer filed or other general appearance) must be presented at the time of hearing on the uncontested or default matter. All forms required by governmental entities shall be submitted at the time the judgment or order is submitted. RULE 4.  DISCLOSURE OF PROPERTY AND FINANCIAL INFORMATION

 4.1  Temporary Orders.  In any hearing for temporary orders in which child support or spousal support is an issue, completion and exchange of Financial Information Statements, copies of income tax returns for the past two years, and the two most recent payroll stubs are required
prior to the commencement of the hearing.  This rule providing for the exchange of information shall constitute a discovery request under  the  T.R.C.P., and failure to comply with this rule may be grounds for sanctions, as provided by Rule 215 of the T.R.C.P.  Sanctions shall            not issue if the judge or associate judge determines that the failure to  comply was not willful. 

 4.2  Final Information.   A party’s final Inventory, Financial Information
 Statement and financial information required under the Tex. Fam. Code
 including, but not limited to, theparty’s income tax returns for the past
 two years and the party’s two most recent payroll stubs, as well as suggested findings  regarding child support and a proposed division of property shall be exchanged no later than ten (10) days before trial, and shall be filed before the commencement of trial. If children are
involved in the proceeding, the inventory shall contain sufficient information so the court may render a qualified medical child support order regarding health insurance for the children. This rule providing for the exchange of information shall constitute a discovery request             under the T.R.C.P., and failure to comply with this rule may be grounds
for sanctions.   

   

4.3     Inventory.  Each inventory shall list each item of property and its value, and shall also list each liability, together with the amount of the liability, the number of periodic payments in arrears, if any, the property securing its payment, and the name of the creditor. Any property or liability claimed to be separate property shall be so characterized.  All
beneficial interests in insurance and all benefits arising from a party’s employment (such as pensions, profit sharing plans, savings or thrift plans, whether vested or non-vested) shall be identified.  Each party shall incorporate as an exhibit to the inventory the last
information furnished about to the employee’s rights and monetary interest in the retirement and savings plans. Each party shall also furnish sufficient information so the court may render a qualified domestic relations order, if applicable. A summary attached to the inventory shall list and total, in columnar format, the property values and liabilities.  Each inventory shall show the net worth of the community estate and the net worth of any claimed separate estate.

 4.4   Duty of Disclosure.  Without waiting for a discovery request, each party  to a suit for divorce, annulment, or a suit in which child or spousal support is in issue, has a duty of disclosure of certain information to the other party.   “Disclosure” includes providing for             inspection and copying the information in the party’s “possession, custody or control,” as that phrase is defined in Rule 166b(2)(b) of the T.R.C.P.. Different types of suits require disclosure of different information.               

 4.4.1    Disclosure in Suit for Divorce or Annulment. Each party to a suit for divorce or annulment shall, without waiting for a discovery request, provide to the other party the following information about property in which the party claims an interest:

 1)  all documents pertaining to real estate; 2)  all documents pertaining to any pension, retirement, profit-sharing, or other employee benefit plan, together with the most recent account statement for any plan;

 3)  all documents pertaining to any life, casualty, liability, and health insurance;

4)  the most recent account statement pertaining to any account located with any financial institution including, but not  limited to, banks, savings & loans, credit unions, and brokerage firms. 

4.4.2  Disclosure in Suit in which Child or Spousal Support is in Issue. Each party to a suit in which child support or spousal support is in issue shall, without waiting for a discovery request, provide to the other party the following information:

1)  all policies, statements, and description of benefits which reflect any and all medical and health insurance coverage that is or would be available for the child or the spouse;

 2)  Unless the information has previously been exchanged in connection with a temporary hearing (Rule 4.1), a Financial Information Statement for the party, together with that party’s previous two years income tax returns and two most recent payroll check stubs, or, if no payroll check stubs are available, the party’s latest Form MT-2.

 4.4.3 Failure to Comply.  This rule providing for the duty of disclosure shall constitute a discovery request under T.R.C.P., and failure to comply with this rule (or any of its subparts) may be grounds for sanctions, as prescribed by Rule 215 of T.R.C.P..

 4.4.4 Method of Disclosure.

 1)  Timing of Disclosure. Disclosure required under this        rule shall be made as follows:

 a)  by a Petitioner or Movant within 30 days after the Respondent files Respondent’s first pleading or makes a general appearance in the case; b)      by a Respondent within 30 days after he or she files Respondent’s first pleading or makes a general appearance in the case, whichever occurs first.

2)   Delivery of Disclosure.  The disclosures required under this rule shall be made by furnishing the information to the opposing party’s attorney of record or, if the opposing party is pro se, by furnishing the disclosures to the opposing party at the party’s address. Each party making a disclosure shall promptly file a notice with the court advising that the required disclosure has taken place.

4.4.5  Duty to Supplement.  After disclosure is made pursuant to   this rule, each party shall be under a duty to reasonably supplement or to amend the information it the party obtains information on the basis of which he or she knows that the information disclosed was either incomplete or incorrect when made, or is no longer complete or true.

4.4.6 Rule 11.  The provisions of this role may be modified by agreement pursuant to Rule 11 or T.R.C.P. RULE 5.  REQUIREMENTS FOR CERTAIN DOCUMENTS

   
     5.1     Certificate of Conference.

       5.1.1        Unopposed motions shall be labeled “Unopposed” in the caption. 

       5.1.2        Opposed motions shall contain a certificate that:

 1)  states that the movant and respondent have conferred with     each other and in good faith have attempted to resolve the matter; and

2)  identifies the basis of disagreement between counsel; or

3)      states that the parties have not been able to confer, and states in detail all efforts made to confer, including dates and methods of attempted communication. 

5.1.3   The clerk of each court is directed not to submit opposed motions to the judge which do not comply with this rule.

5.1.4   The provisions of subparts 5.1.2 and 5.1.3 do not apply to motions for summary judgment, default judgments, agreed judgments, motions for voluntary dismissal or non suit, and motions involving service of citation.


RULE 6.   REFERRAL TO ASSOCIATE JUDGE

     6.1  Referral.  All pending cases and cases filed after the date of the adoption of these            rules are hereby referred to the associate judge of  each court pursuant to Chapter 201,        Tex. Fam. Code, subject to limitations imposed by that same chapter.

    6.2 Order of Referral.  This Rule shall constitute the Order of Referral required by 201.006,         Tex. Fam. Code, as to any pending or future cases under Title 1, 2, 4, or 5, Tex. Fam.          Code.RULE 7: ALTERNATE DISPUTE RESOLUTION

     7.1  Temporary Hearings. In appropriate cases involving disputed custody or visitation             issues, the court shall make referrals for mediation to Family Court Services or other             private mediators agreed upon by the parties and attorneys.  Additional issues may be             mediated by agreement of the parties and attorneys. Attorneys may attend all 
         mediations.              

     7.2  Final Trial.  Except for good cause shown, cases shall be submitted for alternate              dispute resolution procedures before trial.     7.3   Settlement Weeks. Referral of appropriate cases to alternate  dispute resolution             procedures shall be made at one or more settlement weeks each year as provided by             law. RULE 8.     CONFLICTING ENGAGEMENTS

 8.1  Inter-County.  The Rules of the Second Administrative Judicial Region control conflicts in settings of all cases between of all cases between a Harris County court and a court not in Harris County.

         8.2   Intra-County.  Among the trial courts sitting in Harris County:

8.2.1  Trial/Trial.   A trial setting not yet assigned takes precedence  over a conflicting trial setting not yet assigned;

8.2.2   Trial/Non-Trial.  Trial settings take precedence over conflicting non-trial settings except as to court-ordered mediations which are scheduled prior to the assignment to trial; 8.2.3   Non-Trial/Pre-Trial.  The matter which was first   filed, regardless of cause number, shall take precedence over non-trial settings, non-court-ordered alternate dispute resolution and non-court-ordered depositions.

 8.3  Judge or Associate judge.  This rule is applicable whether the matter is assigned to the judge or the associate judge of a court. 8.4 Waiver.  The court with precedence may yield. 8.5 Lead Counsel.  This rule operates only where lead counsel, as defined by T.R.C.P. 8, is affected, unless the court expands 
coverage to other counsel.

         8.6 Engaged Counsel.  Counsel is deemed engaged and unavailable for trial if he or she             participates in the actual trial or hearing of another case or in court-ordered alternate             dispute resolution or court-ordered deposition.              

8.7 Reporting of Conflicting Engagements.  It is the duty of counsel to report promptly to the court immediately upon learning of a conflicting engagement that might preclude that counsel’s availability for trial. Failure to do so may result in sanctions.

RULE 9.   VACATIONS OF COUNSEL

 9.1 General Rule.   Subject to the provisions of 9.2 of this rule, an
 attorney may designate not more than four weeks of vacation during a calendar year as vacation, during which that attorney will not be assigned to trial or required to engage in any pretrial proceedings. This rule operates only where lead counsel, as defined by T.R.C.P. 8, is affected, unless the court expands coverage to other counsel. The vacation designation shall be honored only if it is made on the vacation letter form approved by the Board of District judges of the Family Trial Division and is accompanied by the attorney’s designation of at least one attorney who has consented to act for the vacationing attorney. The designated attorney shall be called upon to act only if the client consents to the designated attorney’s representation, and then only if the court requests the designated attorney’s participation due to an emergency.            

 9.2 Time for Designation.  Written designation for vacation weeks during June, July, or August must be filed with the District Clerk by May 15. Written designation for vacation weeks in months other than June, July, or August must be filed with the District Clerk by February 1. Designated vacation weeks protect the attorney from trials or pretrial proceedings during those weeks, unless an order setting the case for trial was signed and the case was assigned to trial before the vacation designation was filed.

 RULE 10.   UNIFORMITY

10.1    Letters and Orders.  In managing their dockets under T.RC.P. 165a and 166, Family Trial Division judges shall use form letters and orders approved by the Board of District Judges of the Family Trial Division.10.2  Policies and Procedures.  The Board of District Judges of the Family Trial Division shall establish common policies and procedures on pertinent court business. If practical, policies and procedures shall be posted outside the entrance of each court. RULE 11.   ADMINISTRATION OF FAMILY TRIAL  DIVISION11.1  Presiding Judge.   Each Family Trial Division judge, except the Administrative Judge, serves as Presiding Judge for a calendar month in rotation in order of judicial district numbers.11.2  Administrative Judge of the Family Trial Division.11.2.1 Term.   At their regular May meeting, the Family Trial Division judges shall elect the Administrative Judge of the Family Trial Division for a one-year term beginning Tune 1 and ending the next May 31.11.2.2  Substitute.   The Administrative Judge of the Family Trial Division may,  by written order, designate any other judge of the Division to ad for the Administrative Judge if the judge is absent or unable to act.  The substitute administrative judge shall have all the duties and authority granted by these rules to the Administrative Judge during the period of the designation.11.3 Meetings.  The Family Trial Division judges shall meet regularly each month at times and places as the Administrative judge of the Family Trial Division may direct by a written notice distributed, except in case of emergency, at least 72 hours in advance of the meeting.11.4  Reports to the Administrative Judge.  On a monthly basis, the District Clerk shall supply to the Administrative Judge of the Family Trial Division information concerning the number of filings, dispositions, trials and other judicial activities in each Family Trial Division court.RULE 12.            PARENT EDUCATION AND COUNSELING

12.1   Except for good cause shown, in all divorces joined with suits affecting the parent-child relationship, the court shall require parents to attend an educational program for divorcing parents.   In its discretion, the court may also refer parents involved in modification or enforcement litigation, or a child involved in any type of custody litigation, to an education course or for counseling.  In protective order cases authorized by Chapter 85, Tex. Fam. Code.  the court may refer a party to a batterers’ treatment program.RULE 13.            APPLICABILITY

13.1  Effective Date.   These rules shall become effective on January 1, 1998, or upon their approval by the Texas Supreme Court pursuant to T.R.C.P. 3a, whichever comes later.13.2  Cross-Reference.  Any reference in these rules to a statute or a court rule shall also apply to any successor statute or court rule; whether recodification, revision or amendment.

13.3 Applicability.  These rules are applicable to bath jury and non-jury cases.    The foregoing are hereby Ordered and Adopted as the Rules of the Judicial District Courts of Harris County, Texas, Family Trial Division, and the District Clerk is hereby directed to record a copy of this order in the minutes of each of said Judicial Courts.

RULE 14        APPLICATION FOR & REFUSAL OF IV-4 CHILD SUPPORT SERVICES

14.1          As provided in Section 14.3, all final divorce and paternity decrees, including any subsequent modification, that provides for child support paid through the Texas Child Support Disbursement Unit and all cases in which the Domestic Relations Office is currently appointed Friend of the Court, shall be deemed to include an application for IV-D child support services provided by Harris County and the Office of the Attorney General of Texas, pursuant to Chapter 231 of the Texas Family Code.

14.2     Unless required to accept IV-D child support services pursuant to other laws, a child support obligee entitled to receive services pursuant to this rule may decline services by filing a written Refusal of Child Support Services with the District Clerk.  Refusal of IV-D child support services pursuant to this rule does not preclude a subsequent written application for services.

14.3            A Family District Court may implement this rule by written notice from the Presiding Judge to the Administrative Family Judge, District Clerk, Domestic Relations Office and the IV-D Agency.  The rule is effective in that Court on the thirtieth (30) day following written notice and applies only to final orders signed after that date.


Memberships as a Marital Asset In Texas Divorces

April 15, 2007

Memberships such as inclusion in exclusive country clubs can seem to be confusing, but how to divide them is relatively simple.  The court does not have the power to grant membership in an organization to anyone.  Membership qualifications are in the power of the club, not the court. (See, Cluck v. Cluck, 647 SW 2d 338).

 However, this should not confuse the issue that the membership still may be considered of great value.  Therefore, the nonmember may be entitled to the award of other property to equalize the value of the membership in the community property division.


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