Articles Posted in Trial

Both the Fourteenth Amendment to the U.S. Constitution and the Texas Constitution prohibit the state from depriving a person of a liberty interest without due process of law.  Case law has established that parental rights are fundamental liberty interests.  Due process generally requires that a person be given a meaningful opportunity to be heard.  A mother recently appealed her divorce decree, arguing she was deprived of her due process when the court accepted evidence after trial but before entering the final decree.

According to the appeals court, the child was born in March 2020 and the father filed for divorce the following August. In its ruling, the trial court named the parties joint managing conservators and awarded the father the exclusive right to designate the child’s primary residence within two counties. The final decree divided the marital estate, awarding the father $104,738.93 and the mother $69,825.95 from the sale of the home.

Due Process Claims

The mother appealed, arguing the trial court violated her due process rights by accepting certain evidence after the trial.

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In some Texas custody disputes, a parent may want the court to hear an older child’s preferences regarding conservatorship or possession.  Upon application of a party in a suit affecting the parent-child relationship, the court is required to interview a child 12 or older in chambers to determine their wishes regarding conservatorship or the exclusive right to determine their primary residence, in a nonjury trial or hearing.  If the child is under 12, the court may interview them, but is not required to do so.  Tex. Fam. Code § 153.009(a).  A mother recently appealed a judgment awarding the father the exclusive right to designate the children’s primary residence after the court declined her request for an interview.


According to the opinion of the Supreme Court of Texas, the father petitioned for divorce in 2017.  He requested the court interview the children. The mother, however, demanded a jury trial and paid the associated fee.  Mother subsequently withdrew the jury demand. Her attorney stated she did so to benefit from the interview provision in Section 153.009(a), and the mother ultimately testified similarly.

The mother’s attorney requested an in-chambers interview with the oldest child pursuant to Section 153.009(a) by letter emailed to the court coordinator. The attorney also repeatedly called the coordinator to try to get the interview scheduled.  The attorney also requested the interview again at trial, explaining the mother had withdrawn her demand for a jury trial to allow for the interview.  The court, however, denied the request because the mother had not filed a written motion.  The oldest child was 13 at the time of the trial.

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iStock-483613578In a Texas divorce, a jury may decide issues regarding the characterization and valuation of property, but the judge is responsible for actually dividing the community property in a just and right manner.  The court may consider a number of factors, including fault, education, ages and physical conditions, financial conditions, and the amount of separate property.  Generally, the court must hold an evidentiary hearing or trial, unless the parties agree on the property division.

Wife Argues Trial Court Did Not Hear Property Issues

In a recent case, a wife appealed a property division, arguing the court failed to hold a hearing on the property division.

The parties married in 2003 and the husband filed for divorce in 2017. The jury did not hear the property division issues, which were reserved for the trial court.  The court stated that it would try those issues during the jury deliberations if there was time or would otherwise schedule a date after the verdict on the issues related to the children.

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BSgavelx1200-768x432-1The trial court in a Texas family law case has only a limited ability to change its judgment once its plenary power expires.  Generally, plenary power lasts for thirty days from the date the final judgment is signed, but it may be extended if the court overrules certain motions or modifies the judgment while it still has plenary power.

In a recent case, a mother challenged the court’s authority to reform the judgment.  According to the appeals court’s opinion, she had petitioned for the adjudication of the parentage of her child.  Both the mother and the alleged father sought an order adjudicating him to be the child’s father.

The parties reached a partial agreement and went to trial on the remaining issues.

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When a spouse petitions for a Texas divorce, the other spouse must file an answer.  If the other spouse fails to do so, the court may render a default judgment.  Under certain circumstances, however, the other spouse may get the default judgment overturned.  In a recent case, a husband sought to overturn a default judgment entered against him.

According to the Texas Supreme Court’s opinion, the wife filed for divorce.  The trial court granted her motion for alternative service at the home of her husband’s mother.  The trial court ultimately entered a no-answer default judgment the following January.

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In some Texas divorce cases, a party fails to file an answer to the divorce petition or otherwise participate in the divorce proceedings in any way.  When a court divides property in a Texas divorce, it must do so in a “just and right” manner. TEX. FAM. CODE ANN. § 7.001.  However, to do so, the court must have sufficient evidence of the value of the community estate, even if one of the parties does not participate in the proceedings.  Even if their spouse fails to file an answer, the petitioner in a divorce case must present evidence supporting the material allegations in the petition.  If a trial court divides the property without sufficient evidence of the value of the assets to make a just and right division, the division may be subject to reversal on appeal, even if the appealing spouse failed to respond and the court issued a default judgment.

In a recent case, a husband challenged a default judgment granting his wife a divorce and dividing their property, arguing there was insufficient evidence to support the property division.

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Evidence is important in any case, including a Texas child-custody dispute.  In a recent case, a father challenged a trial court’s divorce decree based on the exclusion of certain evidence at trial.iStock-818445486

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Once a child turns eighteen, the Texas Family Code provides that child-support payments can continue as long as the child is still enrolled in school pursuing a high-school diploma. However, at what point is a child no longer considered to be pursuing a high-school diploma for child-support purposes? Recently, one Texas father found out. Continue Reading ›

Pursuant to the Texas Supreme Court’s 17th Emergency Order Regarding The Covid-19 State of Disaster, Texas courts may now modify or suspend deadlines for civil and criminal cases, except for child-welfare cases, until September 30. In child-welfare cases, the Texas courts may modify or suspend a deadline or procedure imposed by statute, rule or order for a period not to exceed 180 days and extend the dismissal date for any case previously retained on a court’s docket for no longer than 180 days. The 17th Emergency Order reiterates the status quo of following the trial court’s order in possession and access cases. Continue Reading ›

Even when society seems like it has come to a halt, life does not and neither does the legal system. In this age of social distancing, self-quarantining, and virtual hangouts, Texas courts have been on the forefront of keeping the legal system accessible to everyone. This is especially true in the realm of family law where courts have employed virtual hearings and trials Continue Reading ›

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