Texas Enforcement Order Reversed Due to Due Process Issues at Hearing

A trial court in a Texas divorce case has discretion in how the trial is conducted, but that discretion is not unlimited.  In a recent case, the appeals court determined the trial court abused its discretion by imposing time restrictions that allowed the husband more time to present the case than it allowed the wife and by refusing the wife’s request to present an offer of proof.

According to the appeals court’s opinion, the divorce decree awarded the wife the marital residence; the entire community interest in a business; three of the business’s bank accounts, with the husband receiving half of the funds in them; and the household furniture and other personal property in her possession or control.  The husband was awarded 50% of the equity in the house; certain assets from the business; the furniture and other personal property in his possession or control; and 50% of the business’s accounts receivable.

Enforcement Hearing

The husband filed a motion asking the court to enforce the property division by contempt.

At the enforcement hearing on June 18, the husband testified he had not received his 50% share of the funds from the business’s accounts, some of the equipment he was awarded from the business, and his personal items. The hearing was recessed until October.

At the hearing in October, the trial court gave each party an hour and a half to present their cases.  The trial court denied the wife’s request for additional time.  The wife’s attorney used the allotted time time during cross-examination of the husband and was not given additional time for the counterclaim. The wife asked for additional time because the husband had already given his direct testimony, but the court refused.

The trial court gave the wife’s attorney time warnings during cross-examination of the husband. The trial court rejected the wife’s attorney’s argument that it was not equitable and he should get more time.  Although the trial court initially agreed to allow the wife’s attorney to make an offer of proof, it subsequently declined to allow it after the husband’s attorney objected.

At a subsequent hearing on the entry of the final order, the husband’s attorney pointed out he waived incarceration and had left the remedy on the proposed order blank to be decided by the trial court.  The husband’s attorney also said he would nonsuit the marital residence claims to get a final order.  The trial court signed an order nonsuiting without prejudice the husband’s request for appointment of a receiver and sale of the property.

The trial court found five violations of the divorce decree, including three related to the wife failing to give the husband half the funds from the business accounts, one for her failure to give him the business equipment in good working order, and one for failing to turn over his personal belongings.  The trial court ordered her to pay the husband specified amounts representing his 50% of the business accounts, to repair or replace the business equipment and deliver them to the husband, and to give the husband his belongings as set forth in the final order, by specified dates.  Although the court found her in contempt, it did not order punishment.  The court also ordered her to pay the husband’s attorney’s fees.

The wife filed motions to modify the judgment and for a new trial.  The motion for a new trial included  exhibits of the offers of proof, with the testimony and exhibits of the wife and another witness.

Due Process

The wife appealed, arguing the trial court violated her right to due process in prohibiting her from presenting testimony and evidence in her own defense and to prosecute her counterclaim.

The appeals court noted the trial court has broad discretion over how the trial is conducted.  In this case, the trial court imposed time limitations without giving the parties prior notice. The trial court refused the wife’s attorney’s requests for more time with what the appeals court called “condescending comments.”

The appeals court distinguished this case from Johnson v. Paxton, a previous case in which it concluded a husband had not been unfairly surprised by time restrictions and the record did not support his claim the wife had been given more time.  In this case, the appeals court concluded the record did support the wife’s claim the husband had received more time because the husband’s attorney had been allowed to conduct a full direct examination without a time restriction. In the previous case, the husband had not been harmed by the time restrictions because he was able to admit evidence, testify, and cross-examine all witnesses.  In this case, however, the wife’s attorney was not allowed to even call the wife as a witness.  Although the trial court had said she would be allowed 10 questions, her attorney was not allowed to question her on cross-examination.  Her attorney objected to the restrictions and told the court he had other witnesses.  The appeals court concluded the wife had not been provided a fair opportunity to present her counterclaim and defend the claims against her.

The trial court had stated that the wife’s attorney would be allowed to make an offer of proof, but ultimately denied that opportunity.  The appeals court noted that a trial court must allow an offer of proof upon request pursuant to Tex. R. Evid. 103(c). The appeals court concluded the substance of the requested evidence was not apparent from the record.  The wife’s attorney was not allowed to call witnesses or present evidence either in her defense or for the counterclaim.  He was not allowed to ask the wife any questions.  The appeals court concluded the trial court’s error in not allowing the offer of proof was harmful.

The appeals court held the trial court abused its discretion in imposing time restrictions that allowed the husband more time to present evidence and by denying the wife’s request to submit an offer of proof.  The appeals court reversed the enforcement order and remanded the case.

Seek Experienced Texas Divorce Counsel

In this case, the appeals court concluded the trial court allowed the husband more time to present his case. If you are involved in a contentious family law matter, a skilled Dallas family law attorney can fight for a fair procedure and to protect your rights.  Call McClure Law Group at 214.692.8200.

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