He will probably take questions. He wants to talk, he said he was going to talk on best interest because coming as a non-family law person, he's got some views on best interest standard.

And so he wanted to talk on that, but I'm sure he could probably be convinced to take questions.

So, yeah, I certainly wouldn't dissuade you from asking them.

So the last thing I'll tell you schedule wise is September 13th.

That is a Friday.

That is when.

This.

The section.

And I'm only doing this because I, I had to make sure we had a court.

And so there's not much choice in it for the section for the, for the executive committee to come up with.

So, but it will be on Friday, Friday, the 13th, which none of you want to be in court on anyway.

And so it'll be, and we're going to be doing the CLE seminar.

It will be completely free.

And we'll have.

Drinks and stuff there.

And we keep saying, Mr.

Jordan, if your firm ends up winning another jury trial, that perhaps the McNutt law firm will be, you know, bringing pizza again, like they did the previous time.

So that's a, that's a hint.

Judge, I have it on good authority that our firm is willing to help out.

So if you want us to, we can do that.

So, yeah.

The person to coordinate with is Anna Bowling.

She was our.

You know, she, she was our person that, that kind of headed up all of the refreshments and stuff and did a great job at it.

So, but yeah, if you reach out to Anna, but it will be on the 13th and it's likely to be where it, we did the first one short because we didn't know how many people we would get.

We were afraid that we'd have maybe like three people sitting there for an entire day.

So.

But this will be much longer and we'll cover topics from the marriage to solution course and the advanced course.

And so if any of you guys want to talk, I've said this before, just talk to someone on the executive committee.

Talia is a member.

I am Matt Hill and Alicia Key and Anna Bowling.

Judge Junkin is also on there.

And so just let them know that you would like to talk on something and you don't even have to write a paper.

We use the papers from previous speakers and we get even their permission to use their PowerPoints.

So, but it's a great opportunity to get free CLE.

So we had interesting there.

The deal with appellate courts is appellate court.

Are supposed to, just like the Supreme Court, take off during the summer Supreme Court, you know, runs from October to June and then during the months of July, August and September, they're really not supposed to be operate.

They don't take oral argument, anything like that.

There were only a few appellate courts that had the decency to follow that schedule.

We have some interesting opinions out of the third court.

I'm going to start with, we actually had an opinion out of the U.S. Supreme Court that you should take note of.

And that is U.S. versus Rahimi.

And if you go to the U.S. website, the cause number is 22-915.

22-915.

And that's United States versus Rahimi.

Why it's important is that it came out of Texas, went to the Fifth Circuit, and then up to the Supreme Court.

Rahimi agreed to a protective order.

And as such, he had to give up his firearms, right?

Well, he was indicted under federal law for possessing a firearm in violation of the protective order.

He challenged the constitutionality of the statute.

And.

The Fifth Circuit held that it violated his Fifth Amendment rights.

That, and they, you know, they looked at the Bruin decision that they had recently handed down,

or that the Supreme Court had recently handed down and said,

well, there's no historical policy that keeps people who have been under a protective order from, you know, owning handguns.

And so since there's no really historical policy for it,

we're not finding any basis in the law, and it's unconstitutional.

The Supreme Court righted the ship and said, no, it does not violate Second Amendment rights for there to be a prohibition against someone who has been found to have engaged in domestic violence to take away their gun.

The majority said that Rahimi's facial challenge fails because his own case applies to the statute.

Um, he has been found to pose a credible threat to the physical safety of others.

And this sufficient historical analogies exist.

Uh, and common sense.

Imagine that common sense supports the conclusion that those who pose a clear threat to the physical violence to others may be disarmed.

The Fifth Circuit didn't agree with that.

Um, and so the Supreme Court says Fifth Circuit, you completely.

Took out of context, our opinion, um, there's Sotomayor concurred in that, which is interesting considering she was a Democratic appointment, Gorsh, um, uh, also concurred, Kavanaugh concurred, Barrett concurred, Jackson concurred, and the only one who dissented was Thomas, who said that he thinks that, um, there's no historical analogies.

Um, there's no historical analogies.

Um, there's no historical analogies.

Um, that he, uh, agrees it's a violation of the Constitution, the Second Amendment, to even to take away someone's gun just because they've been found to be violent in a domestic violence situation.

So, um, that's just important case to know because the concern was it was going to gut all of the protective order, um, in Texas.

Because, um.

protective orders at the provisions you can't own a gun you can't own ammunition and it was also

going to call into question convictions for violations of protective order where someone

was in found in possession of ammunition or a firearm and so the Supreme Court dealt with

dealt with that the Texas Supreme Court has an opinion I just wanted to mention it to you

it's not it's not a you wouldn't think of it as a family law case but

it's important for you to be aware of it's state versus low and low is l-o-e state versus low it's

a 23-0697 so you can get the opinions off of the Supreme Court site 23-6097

this is the direct appeal to the Supreme Court on the transgender

law the law that says that you can't give medical treatment for gender dysphoria to minors

and they the there were a number of people that were challenging

the right of the the statute saying that as parents they should have a right to dictate

medical treatment for their children and so the law prohibits a parent from

getting treatment for their 12 13 14 year old kid who's been diagnosed with gender dysphoria

the Supreme Court upheld the statute the trial court had granted a temporary injunction

and they just they bypassed the court of appeals and went straight to the Supreme Court

the stream the Supreme Court set aside the injunction

they and they have language in there about because the argument was fit parent okay the you know

Troxel CJC有 hair

that we're fit parents and as fit parents the government can't tell us what we can and can't

do with our kids and the court says that although fit parents have a fundamental interest in making

decisions regarding the care custody and control of their children that interest is not absolute

and it does not include the right to demand medical treatments that are not legally available

the court observed that the texas legislature has expressed constitutional authority to regulate the

practice of medicine and the novel treatments at issue in this case are not deeply rooted in the

state's history or traditions such that parents have a constitutionally protected right to obtain

those treatments so they said look it's illegal and yes you're a fit parent but that doesn't allow

you to get an illegal treatment for your kid

um and so that's the angle that they went from but um it does have some good language about the

fit parent standard so it's a you know it's more dicta than anything else the interesting thing

is that justice laramie who is the only board certified attorney um on the texas supreme court

says that if a parent has a fundamental right to make medical decisions to their children

and by seeking and following medical advice and so a law preventing parents from obtaining

potentially life-saving treatments from their children should be subject to strict scrutiny

and that this law would not survive so um she she said

and it's also interesting because i i'm almost 100 sure that justice laramie is a republican

and so that's a very interesting take i mean you see ideologically wise he's right he's run as a as

a republican and so um it's not necessarily the conservative approach to say that the law that uh

bans transgender treatment uh for for children

um is you know that it's unconstitutional but uh that's what uh her dissent was she was the only

person uh who dissented the the other eight uh were all um all went with the yeah she was the

only one that dissented uh justice blacklock busby and young filed concurring opinions

and laramie filed a dissent

so just something to be aware of um we had a few cases uh out of the third court of appeals

actually um five cases out of the third court uh the first one and they all came i think out of

travis county uh no one one's from bell one's from the other side of the court uh the other one's from

williamson but they're the majority are from travis county okay so the first is inray cozen

and cozen is k-o-z-i-n-n

k-o-z-i-n-n and it's from june 6th it is 2024 westlaw 2855077 2855077

the third court number is zero three two three zero zero seven four eight

um two three zero zero seven four eight and um in this case it was a mandamus case

and the court of appeals

was addressing findings by the trial court regarding um a petition for enforcement

and whenever you have a petition for enforcement that does not impose contempt

and incarceration uh the correct way to appeal that is through a mandamus

and it is an interesting case

because it is a case where the court upheld violations of the children's bill of rights

um if you know i'm not a big proponent of having the children's bill of rights be in order of the

court and in fact i um specifically say in any order that's presented to the court that

if you want to have it in there it's the party's stride to

abide by it um but they they don't discuss whether it's enforceable or not

my perspective has always been unenforceable but um it's it's a case where the trial court

did that and it's and it's mentioned that there were a number 19 different violations

of the children's bill of rights and so it's a case you can point to to say well you know

the courts in travis county have enforced it too and i think that's a good point i think

that's a good point i think that's a good point i think that's a good point i think

that's a good point i think that's a good point i think that that's a good point

and i do not know how many times the people

have said yes when tracking😣

to tell someone you're going to be fined this much until you do X, Y, or Z

because the order in Cozen had the fines payable to the other party,

and you can't do that.

And so they granted the mandamus on that and said monetary fines for contempt

are not payable to a private litigant.

So if you're having somebody fined, the money goes to the state.

It goes to the county.

It doesn't go to the litigant.

And they also talk about there was an order to complete an age-appropriate

four-hour online parenting class, and the person didn't do that,

and so they were being held in.

There was an enforcement action.

They were being held on that,

and the court.

The court said, well, that's not specific enough to enforce.

What do you mean by an age-appropriate parenting class?

So that's Cozen.

I'll just mention without talking about anything more in the opinion,

just so you're aware of it, Clark versus Binder.

Clark, C-L-A-R-K versus Binder.

2024 Westlaw 2868277.

Third quarter, it's 3-1, and it's an intentional underemployment case.

The appellant claimed that the trial court, I think that was somewhere in here,

but it's, I can't, oh, yeah.

She testified that he told her he would quit his 2015 home-selling job

so that she would suffer.

Ex-wife testified that he had missed visitations to go on vacations and spend money.

She testified his threats to quit his job in a 2018 email.

The, basically, the Mandamus Act, the appellate court said no.

No controverting affidavit, automatic.

You need to sign the order.

No hearing.

And it's a good case talking about just the law about that.

Another case similar to the one where you can point to the Children's Bill of Rights.

This is a case out of Austin.

Actually, Williamson County, I'm sorry.

Judge Larson.

And it is Pierce, P-E-A-R-C-E, Pierce v. Pierce, 2024, Westlaw, 3-1-8-7-6-6-8.

3-1-8-7-6-6-8.

It's 0-3-2-3-0-0-3-99.

0-3-2-3-0-0-3-99.

It's June 27th.

And,

the court affirmed in all, all the, all the trial court's rulings,

the,

what was alleged was

that there was error in allowing mom to have the exclusive right to determine primary residence

and the orders for possession and access.

Why I thought this was significant, imposing a morality clause.

And,

that's,

really the what I thought was a something to look at.

Plus the district court also ordered in this guide to continue on Soberlink as part of the final order of possession.

And,

the,

the,

morality clause,

provision.

The court says that there's no,

um,

abusive discretion to do that.

It was that said neither party will introduce or have,

or have the children in the presence of a romantic partner or anyone they're in a sexual relationship with.

That the party shall not introduce the children to their own marriage with them.

romantic partner until they've had it been dating for a minimum of six months and they won't have

you know overnight sleepovers until that that time and the language in here is good because

it uh provides that it talks about the ability of the court to impose morality uh clauses the

other thing that's interesting in this case is judge larson appointed a case manager

okay not a parenting coordinator a case manager and the court says that was perfectly okay

so if you're looking for a case where someone says what's the authority for me to be able

to do that i'm not a parent i'm not a parent i'm not a parent i'm not a parent i'm not a parent

a case manager you can say well uh right here it says finally we discern no abuse of discretion

in the district court's appointment of a case manager to monitor mark's therapeutic process

the case manager's duties include confirming that with each party that mark is participating

in aa meetings that he's secure to sponsor that he's participating at the frequency and duration

in accordance with the recommendations of his psychotherapist that he's attending appointments

with a psychotherapist uh that he's begun treatment uh with a therapist who's trained

and specialized in sexual addictions confirming that he's beginning psychotherapy uh with a

professional for dual diagnosis and substance use and mood disorders these are not arbitrary

or unreasonable requirements in light of the evidence showing that mark continued

to struggle with alcohol and substance issues

so um i think that's a good case to be aware of if you're wanting to to go the case manager route

and say well we need somebody to help shepherd these people going forward judge we want to do

the case manager and the judge says well point point to me where in chapter 107 or in chapter

153 there's a provision that says the court can appoint a case manager

i mean it's it it's something that we've come up with that attorneys have come up with um

because they need something different than a parenting facilitator or parenting coordinator

going forward they need someone really just to uh keep tabs on things and case man and they

you can't have a guardian enlighten so case manager seems to fit and there's a number of

people that that um are comfortable filling uh that um that that uh that that uh that uh that uh

role um the last case is um gonzalez versus gonzalez and it is out of the um travis county courts

it's 2024 westlaw 3211239 3211239

and uh

the court of appeals number zero three two two zero zero four zero eight zero zero four zero

eight it's june 28th um and this was a divorce but as part of the divorce

there was a uh tort claim suit a suit for tort uh in tort for civil assault

and they awarded a hundred and thirty thousand dollars in uh fees are in as a judgment for

assault and also for the intentional infliction of emotional distress and so there's very good

there's a very good discussion

um about uh the law involving these sorts of claims in uh divorce cases and what has to be

proven uh very good discussion also from the third court about the uh extreme what constitutes

extreme and outrageous conduct in a divorce case because the court has a very good discussion about

um lied the author's the intended negative conviction and what's been denied is there's a

consistent claim in a divorce case that's fry v política because the front court might feel just that udum made that point and it's showing that point instead ofгиama just就是ciente because you guys are are have not been practicing long enough to to probably remember when the law about intentional infliction emotional distress came out and this was in like the early to mid 90s and and the there was a push at that time to have the Supreme Court recognize negligent infliction Dynamitcus the law about intentional infection of emotional distress came out and this was in like the early to mid 90s and the there was a push at that time to have the supreme court recognize negligentaha domuse invas arranged how to apply leave is was not enough to the there was a push at that time to have the supreme court recognize negligent

of emotional distress and that issue was was argued and if you can imagine in a in a family

law context how that could have just made things you know crazy because Richard Orsinger

was arguing to the court to the Supreme Court well consider if you know does that create a

cause of action for a spouse who burns the dinner you know and you know or is a terrible cook

and that is considered to be negligently inflicting emotional distress on their other spouse

you know and you know or is a terrible cook and that is considered to be negligently inflicting emotional distress on their other spouse

because there's all kinds of things that happen and slights and that happened during marriage

but what qualifies as you know enough to get to a negligent intention you know just how

how walking up how much do you have to walk on eggshells and they said no we're we're going to

leave the intentional infliction because if we see someone's doing this on purpose

um then uh you know yes it should be actionable but if someone just has a duty and there's a breach

of that duty and they are negligent in in carrying out their duty that that's not that shouldn't be

that shouldn't give rise to a cause of action but it's a very good discussion in there

the other thing and this is um a point that I've made a couple times

the court reversed on one point because they have held everything else it's yeah 132 000 there was evidence for the damages

um they reversed on one point and that is the court ordered retroactive child support

okay they ordered retroactive child support of thirty four thousand dollars

they rendered a judgment for that amount a judgment for retroactive child support

the dad appeal

and said there's a difference between an award of retroactive support and a judgment

for past due child support and there is a distinction and the third court says that

you get retroactive support under chapter 154

you get a child support judgment only under chapter 157 for an enforcement action

and you can't have a judgment under chapter 157 for retroactive support because it's not an arrearage

so anytime you're entering an order for retroactive child support it's not a judgment

it's just an order to pay retroactive child support and you order it either paid as a lump sum

or you order it paid at in payments and then if that order is not an enforcement action

for retroactive child support then you can't have a judgment under chapter 157 for retroactive respbuhort

orders not complied with, then you can sue for an arrearage. So if it's like three grand of

retroactive support, you can say this $3,000 needs to be paid by X date, just like you were ordering

current support. And then if it's not paid, you file a motion to enforce under 157, reduce it

down to a money judgment. But you can't do that with just the court saying, well, you owe, I'm

going to go retroactive back to the date the suit was filed. And that's what the court says

here. It says, Ricky is correct that the trial court erred in awarding a money judgment for the

retroactive support on top of its mere award of retroactive support. Child's enforcement proceedings

under the family code chapter 157 are entirely different proceedings from those for first

securing child support awards under chapter 157.

Chapter 154, and they cite a Supreme Court case. 157 authorizes money judgments for unpaid child

support, but chapter 154 authorizes money judgments in only a more limited circumstance. And that's

when the child support obligor has died. Nothing in the record suggests that there was retroactive

support sought under chapter 157, an enforcement proceeding. Instead,

the statutory basis for the awards of child support recited in the final decree was chapter 154, right?

So, and I've mentioned this because when I review orders and I see a judgment for retroactive support,

I'm going to send it back saying, nope, you can't do this. It's not a judgment. It has to be set up just as like current support.

Now, Judge, I've got a question on that. As the stupidest person in this room, admittedly,

did I hear you say that you could not pigeonhole your judgment in by asking for retro and then if

the court awards retro, then we want a judgment under 157? No, because it's not, it's not delinquent

until it's not paid. You're, you're, you're creating, you're creating the opportunity,

the obligation, and then you're automatically entering a judgment for it without giving the

person the opportunity to pay it. And so you, you can, you know, you could say, Judge, we want this

paid in 30 days. And if it's not paid, and if you're, if you're trying to do it, one suggestion

would, would be that you say, Judge, we want this paid 30 days from the date of rendition,

because it usually takes everyone longer than to get the decree.

And then you go in on the, at, when they don't pay the, on the 30 days and say, Judge,

we now want to change this because you ordered them, you rendered an order. We're not holding

them in contempt or anything. So it could be an oral rendition. You ordered them to pay this

within 30 days. They didn't do it. So we want this converted now to a judgment in the, in the

paperwork that you're doing. And so before you sign this, make it a judgment, because

they, they failed to pay it. And you can have the order reflect that, you know, if the court rendered

an order for 30 days, it wasn't paid. Therefore, the court now reduces it down to a judgment of

this amount earning 6% interest to be paid out this way. Okay. Thanks, sir. Judge, on that same

topic. Sure. How does an MSA affect that? Like I am now drafting an order based on an MSA and it,

it did.

Well, it did say that retroactive child support could be, would be reduced to a judgment. And now

here we are three months later from that MSA date. So now we have a new amount of three more months

of unpaid child support. And I'm just thinking, how do I draft this since it's arguably controlled

by the MSA? You know, I think if it, the, I think the MSA is going to supersede that. And so if the,

if some, and this is something to remember when you're doing mediated settlement agreements,

that not to agree to take a judgment, because you can confess a judgment. And the law lets you do

that under the rules of civil procedure. So you, you can confess and say, yeah, do it as a judgment,

which apparently they, they did. So, you know, if you're representing the party, you want to make

sure that, you know, the party that's going to be paying, you want to make sure that no, it's not a

judgment. And, you know, if you're representing the party, you want to make sure that, you know,

not have that reflected that way in the, in the MSA, because it's natural because everyone does

it. They, well, we want a judgment for retroactive child support. And I have to go like, it's not a

judgment. You want an award of retroactive child support. You're going to get an award of

retroactive if you meet the requirements, but it's not a judgment. It's just an award. But I think

you're, you're bound by the MSA. If the parties agreed that it was going to be in, in the form

of a judgment.

Because

Well, I think

I guess I have to, I have, I have to draft the judgment for that first part. And then the next three months is going to be drafted as just an award for retroactive or unpaid or

Well, yeah. Yeah. Yeah. That's the, that's the way I would say, because you could think of it by analogy. If someone

If, in a, if someone says I'm going to, as part of the property settlement, I see it the same way as, as part of the property settlement, you say, I'm going to pay you 15,000, you know, husband's going to pay wife $15,000.

Well, some people just write it into the order, pay wife $15,000. The attorney representing wife is going to go, I want that as a judgment. And I want language in there that he's going to let us take a judgment.

So,

Well, once they've got that preët nochmal I'm gonna get the 15,000, then I'll mover that on to that next part.

Because they know just an order to pay is not really, you know, you're going to have to do an enforcement to have it reduced down to a judgment and stuff in a chapter nine proceeding.

So it's the same kind of thing that in the MSA, how do we know that there wasn't a discussion in mediation about, well, we, we don't want to have to do the additional step of enforcing this if they don't pay the.

Retroactive trial support.

So we want it we want it as a judgment right now. And the people say, OK, great. And and so you're stuck with the NSA on that.

So here is an interesting.

An interesting case that that came out of Fort Worth Court of Appeals.

It's Morin, M-O-R-I-N versus Morin. And it's 2024 Westlaw 2854-875, 2854-875.

And the court of appeals number is 0223-00349, 0223-00349.

And you have to read this case because to under I may not be clear explaining it.

But this is Elvis Morin, Elvis and Tammy.

So Elvis and Tammy got a divorce and Elvis contends on an appeal that the trial court abused its discretion by failing to divide marital property,

according to the terms of the premarital agreement that he introduced.

And he signed. So he drafted a premarital agreement.

Elvis did downloaded it off the Internet and they executed the agreement two days before the wedding.

And it contains this language that says, first, the agreement establishes that all separate property each person brings into the marriage will remain each person's separate property.

Next.

The acquired property provision states all property acquired by each during the marriage shall be deemed their property.

So the argument is, what does the word there mean?

Is it there in the terms of singular for each like each of their property or does it mean there for the two of them together?

And the Court of Appeals goes through this entire discussion about the the according to style guides, the usage of their meaning individual is a is a recent development in spoken and informal language.

It's not commonly accepted in formal writing to refer to to someone like is there in them.

So it gets into a gender kind of thing.

But, you know, he cites two legal guides that argue that both each and there are gender neutral so that there actually means each because he was trying to say the stuff that they got while they were married should have actually since it was put in his name should be his and did not belong to the to the both of them.

And the court said, no, no, no, no.

No, no, no, no, no, no.

Everything that you acquired while you were married is belongs to the two of you and his community property and they divided it.

And so but yeah, it's the and they said, even we don't think that that's ambiguous.

And even if it was ambiguous, we would construe the agreement against you, Elvis, because you were the one that drafted him.

So there's so there's that.

There's a contest.

There's a contest.

There's an attempt case out of Fort Worth and it is in Ray Lloyd, L.O.Y.D.

It is 2024 Westlaw 32202753220275 and it's 022400266.

And this is a case that talks about a couple of things.

One is it again goes into discussion about you can't appeal a contempt order and that if incarcerations involved, you file a writ habeas corpus.

If there's no incarceration involved, you.

You.

You.

You.

You.

Proceed forward with a mandamus.

This was a writ habeas corpus proceeding and the court basically said that the two child support violations did not include the specific amount of the.

The.

Arrearages.

And that you have to include the specific amount of the arrearages in the in the court.

In your pleadings.

And the other thing that was important about this.

Was.

I'm not so sure.

That.

The.

The complaint that came out of the.

The.

The relator was that the trial court's orders are void because he was not timely admonished.

Under 157 163 a and that the trial court's running statement of law to support.

Are.

These entitled relief.

And.

They go into this discussion about.

Content.

Proceedings are considered quasi criminal in nature and they have to conform as nearly as practicable the criminal proceedings and 157 point 163 a.

Puts a responsibility on the trial court to go in and say oh this motion may lead to incarceration so you have the right to an attorney.

That's the only right the person has to.

Be admonished about.

They don't have to be admonished.

About their right.

To.

Their fifth amendment right.

And this court says.

The trial court has no duty to inform a testifying defendant represented by counsel of his right not to testify.

And.

So.

If you.

You have the duty to advise your client of the.

Possibility.

Of.

The right to counsel.

That.

If they testify.

What they say can be used against them.

And.

Because the court the court said.

Judge didn't have to do anything.

And plus you were already represented by counsel so.

He really didn't need to tell you that you have the right to counsel.

The next case.

Is.

Out of San Antonio.

And.

It.

Is.

Interesting from the standpoint.

It's shallot versus shallot.

It's S.

H.

A.

L.

I.

T.

S.

H.

A.

L.

I.

T.

It's twenty twenty four Westlaw.

Two eight.

Three six.

Six.

Three eight.

Two eight.

Three six.

Six.

Three eight.

It's zero four.

One five.

Three nine.

One.

Three 20.

An.

Three 20.

An.

Three 20.

Four.

Five.

And.

Five.

Nine.

This.

Was.

A. Case.

That went.

In your you may never have this situation.

But it's.

Good to know that there is some authority out there that will guide.

You.

Gallant kept saying, we need to present new evidence.

We need to show you what's gone on with the property since the time of the divorce.

Values have changed.

Some of the property's gone.

And the court says that we see nothing in their analysis that requires a trial court

to hear additional evidence when rendering a new just and right property division on remand.

We decline appellant's invitation to create such a requirement under these circumstances.

The underlying premise of appellant's argument is that the trial court was required to consider

the marital estate as it purportedly existed after all of these post-divorce transfers,

exchanges, and dispositions, instead of as it existed

at the time of the divorce.

At the time of the rendition.

But it is well established that the better rule, and the rule generally followed in Texas,

is to value and divide the assets as of the date of divorce.

Okay, so you don't get to say, well, let's take into account what's happened in the year

and a half since this case was gone up on appeal.

Another San Antonio case, and this one is,

interesting only from the standpoint of, it's a CPS case, or a department case,

and it's in the interest of BJS, BJS, and it's 2024 Westlaw 2836636, so that's Bravo Juliet Sierra,

and it's 0423.

03-01-075, 01-075, the department's attorney at trial said,

we're not seeking termination against either parent, we're only pursuing JMC.

Trial court went ahead and terminated both of them.

And based on this...

And based on this record, we conclude the department expressly abandoned its pleading for termination,

and sought only to have the parents appointed joint possessory conservators of the child.

And when a party abandons a claim in a live pleading,

that pleading will no longer support a judgment on the abandoned claim.

So, yeah.

It's like, I guess the judge was like, I don't care that you're not going to do this,

I'm just going to go ahead and terminate anyone.

Anyway, so the interesting thing about if you have been attending any of the office hours,

you will note that there's a judge down in San Antonio who...

Consistently is the subject of mandamus actions by the Texas Department of Family and Protective Services

because she continues to order the court to...

The department to do things they can't do.

All right?

And there are no less than three cases,

in the last month,

that have come out of the fourth court of appeals

that deal with this exact same issue.

And it's crazy that that's the case.

And I'm trying to find where there was...

And I guess this is the three opinions.

So, I'm not going to really spend any significant time on this.

It's just crazy that the judge down there is...

They...

They end up citing all of these opinions that...

Where they said the same thing.

You can't order CPS to do this.

You can't order CPS to do this.

The judge even, in one case, issued a...

A...

Show cause...

A cause order for the director of Region 8

to appear before the court

and held the director in contempt for not showing up.

And a director had to file for...

And it's Judge Alvarez is the judge from down there.

Mary Alvarez.

Mary Alvarez.

And...

So, in one of the opinions, though...

And this is the only one I'll mention

because I won't miss the other two.

But they're...

In fact, some of them involve the same kid.

But...

This is...

It's Enray Lozano.

And...

Lozano is the Region 8 director of the Texas Department.

And it's 2024 Westlaw.

Three...

Zero...

Five...

Six...

Six...

Seven...

Two...

And it's 0423-01040.

At the very end of the case,

they say,

Notice to Judge Mary Lou Alvarez.

Our court issued the first opinion concluding

that Judge Mary Lou Alvarez exceeded the constitutional limits of her authority

to issue CPS orders against the department in June of 2022.

Since then,

she has issued additional CPS orders that exceed her authority.

Her continued disregard for our previous opinions and orders

and for the constitutional limits of her authority

is concerning.

And then they do a footnote where they cite to every single case

that they have dealt with the same issue.

And then they cite to the rule of judicial conduct,

canon,

and then they end it with,

To ensure that she has notice of these limitations

and in the interest of judicial efficiency,

we order that this opinion and order be personally served

on Judge Mary Lou Alvarez.

So it's kind of like,

are you not getting our message?

Is someone not showing you these opinions, Judge?

Because now we want someone to

deliver this to you

to tell you

please stop doing this.

I mean, it's crazy.

It is absolutely crazy.

There is a case out of San Antonio,

Nunez v. Nunez.

And it is 0422-00362.

And it's 2024 Westlaw 3054038.

It's a case that has a good discussion on spousal maintenance,

but also discusses,

because the husband was complaining,

one, that he got ordered to pay spousal maintenance,

but two,

that his government retirement

was improperly awarded.

And there's a good discussion of

the application of the Barry formula

to determine what the community interest is

in retirement

and how to properly award that.

There is

day versus day,

which is out of

the San Antonio Court of Appeals.

It is 2024 Westlaw

3056665

3056665

It's 0423-00476

00476

And it's a case that has a good discussion on spousal maintenance,

and it's affirmed in part,

reversed in part,

and remanded.

The first part of this has an interesting discussion where,

and I know you all could probably appreciate this from,

you know,

discussions that you are cases that you've had with pro se people,

but particularly probably in front of me.

The court wife was representing herself pro se.

And she testified.

And then the judge said,

you know,

the factually both of them were pro se.

And the judge said,

you know,

you rest and the trial court said,

take your time.

And well,

and the wife said,

well,

we could sit here and go back and forth.

And the judge said,

well,

listen to me,

please,

before you keep going.

And she says,

I rest.

And then when they were making their closing arguments,

she hadn't put on any evidence of her medical condition.

That was,

she said,

was the basis of her claim for maintenance.

And when she started doing that,

she,

the husband raised several objections,

which the trial court overruled.

And the trial court said,

I'm going to allow her to reopen her evidence.

If you'd like to cross-examine her,

I'm going to allow you to do so.

I believe she made the decision to rest before she understood the consequences.

So go ahead.

And she put on all the evidence that was needed to prove up her claim.

And then he found,

you know,

that she was entitled to spousal maintenance.

And the complaint on appeal is,

well,

you know,

you were too nice to the pro se person,

and you shouldn't have been too nice to the pro se person.

And that,

you know,

that cost me.

And the court says,

although a trial judge should not act as an advocate,

the judge may put material questions to witness to elicit evidence that has not otherwise been brought out.

The purpose of eliciting evidence,

which has not otherwise been brought out or to clarify testimony,

it is ordinarily proper for a judge to put competent and material questions to witness,

either on the examination in chief or cross-examination,

or where anything material has been admitted,

it is sometimes his duty to examine the witness.

So,

it surprised me

because,

you know,

we,

I think last week or the week before,

had the hearing,

with our district clerk for the,

and Judge Meacham was the judge.

And Robin came in and came back and told me,

you know,

Judge Meacham asked a lot of questions too.

Because a lot of judges don't ask questions.

As you know,

I asked a bunch of questions.

And so I got to go like,

yeah, Judge Meacham's a good judge.

That's why she asked questions.

But,

but that is a good explanation for why I ask questions.

Because I'm aware of what the law says.

The law is that I can ask questions even about things that weren't brought up.

That may not be helpful to your case at times,

but I always give you the opportunity to cross-examine and ask other questions.

And, or it may be helpful to your case.

If it's something that you haven't thought of,

then I'm asking about it.

So I just usually don't,

I'm not asking a question without a very specific reason for it.

Sometimes I'm asking a question because I've got a case that's right on point.

And I want to see if they're going to answer the way that the,

that it was in the,

you know,

they fit within the description of the case.

There is a,

a case out of San Antonio also,

which is in the interest of Romeo Papa,

RP, RP, in the interest of RP.

It is 2024 Westlaw 3056670,

It's 042300828.

And,

um,

this,

it's a termination case and the language in,

in the case is good because it has a,

a fit parent discussion and the proof necessary to overcome the fit parent presumption.

And what's necessary to show that unrestricted possession by a parent would endanger the physical or emotional welfare of the child.

And if you're looking for a good source for the applicable case law about that,

that cases is good.

Then,

and this was the case,

Mr.

Grove that you and I were discussing out of San Antonio.

It's Dirksen Mayhew,

Nray Dirksen Mayhew.

It's D-I-R-K-S-E-N hyphen M-A-Y-H-E-W.

Dirksen Mayhew.

It's 2024 Westlaw 3056690,

Um,

this is Mather filed a petition for behavior.

Corpus and the court had denied the Rehabilis Corpus.

And the reason they did that was that father was indicted on a criminal offense.

Our mother was indicted.

Yeah,

mother was indicted for the criminal offense.

And the court tried to find that while father noted that mother had been indicted connection with the 2020 altercation.

We have previously held that pending criminal charges standing alone do not satisfy the serious and immediate question threshold necessary to deny a habeas petition seeking a child.

So if your client is holding on to the kid because oh my gosh,

he's been arrested and he's been charged.

It's like that's not enough according to this opinion.

So the and that's what the appellate court said it.

No,

you got to return the kid.

We know you got some complaints,

but the law is very strict about what's necessary to prove this,

you know,

serious and immediate question.

And just because they've been indicted that standing alone is not enough.

So and this was on family violence that she was indicted on.

So then get to there.

This is a non family law case,

but it's important because it involves something.

A lot of you using your cases.

It's the property owner rule that a property owner in the state of Texas can testify as to the value of his or her own property.

And that comes up all the time in cases when you're asking someone what's the value of the car?

What's the value of the you know,

the boat that you guys own?

What's what's the value of the furniture in the house?

Or

you're asking those questions.

This case is Fernandez versus Ayala Fernandez versus Ayala.

It is out of the Dallas Court of Appeals.

It's 2024 Westlaw 3040409 3040409.

It's 0 5 2 3 0 0 5 4 9.

0 0 5

0 5 2 3 0 4 9.

And

in

this case,

the

court found they

it was a partnership dispute.

And

the

there was a judgment of damages for a hundred and four thousand

dollars.

The court reversed it

because the testimony

was

at the time of the separation.

How much do you think the Mahinda tractor was worth?

Answer maybe 23,000.

What about the brush off?

Maybe a hundred dollars?

What about the greater 200 bucks?

The stock trailer?

Well, maybe two thousand two hundred twenty five hundred.

You add two flat with trade two flatbed trailers.

What were they were about a thousand?

So a total of two thousand.

Yeah, I've seen people do this.

Yeah, they go through and they they say,

well, what about this?

And is this value?

And there's two pages worth of this testimony set out there.

And the court says none of that meets the standard.

Because Ayala provided no basis for his valuation of the property.

He did not testify that he was familiar with the market value of the property

or otherwise explain how he determined the value of each item.

Except he did testify that an appraiser told them the bar Dominion would work

$120,000.

There is no evidence that he did the actual market value of other similar items

or that his testimony referred to anything other than the subjective items

value the items to him.

In fact, much of this testimony regarding value appears to be just sheer guesses.

So

you need to be familiar with this,

so that you can defend your valuations by coming in and say,

well, judge,

he meets the standards.

He testified about how he knows everything that the court said.

The guy didn't do in this case.

You need to check off the boxes and say he said he was familiar with the value.

He explained how he determined the value.

He went and got the information from,

you know,

the blue book value.

You know,

he knows people that have sold these things and he's aware of what of what they're selling for

something.

But they've wiped out $104,000 judgment,

which was totally totally avoidable

on this.

So

I wanted to

another case.

Have a case on.

Okay.

There's a case on

Dean admissions.

It came out of the Eastland Court of Appeals.

And

that's in Ray Sanders.

And in Ray Sanders is

1124 Westlaw 3056247 3056247 and it's 1124 00109 and there's a distinction in the law.

When

someone fails to file.

Answers to admissions.

There's a there's a distinction in the law about how those what you have to do.

And in this case,

the guy was one day late.

Okay,

one day,

one day late.

He filed them on January 19th.

And

the

court said when

you have admissions

that are admitted and I the validity of this document.

I mean,

you're the the authenticity of this document.

That those don't go to the heart of the case.

They just go to proving up some collateral matters.

When you have merit preclusive ones,

which are admitted denied that you committed fraud.

Admitted deny that you wasted this asset that you spent this money without the other person.

It proves all the elements of your offense.

They're considered merit preclusive.

And when deemed admissions are merits preclusive,

the party opposing the withdrawal of the deemed admissions has the burden to demonstrate

that the party seeking withdrawal acted with flagrant bad faith or in callous disregard for the rules.

So if you're saying no,

they shouldn't be able to withdraw judge because that you have to prove that it was in flagrant bad faith

or in callous disregard of the rules.

Otherwise they get to

have them undeemed.

And the burden is on you.

The person trying to keep them deemed

to be able to convince the trial court that of this flagrant disregard.

And in this case,

they said no,

there's no evidence of that.

There's

also

very good discussion about parties duty to cooperate in discovery.

And they know they say our rules of procedure require that before parties bring discovery related matters to the court's attention.

They confer this requirement should not be ignored nor should be observed in a pro forma fashion.

While conferring counsel for the parties are under a duty to cooperate and to make any agreements reasonably necessary for the

efficient

disposition

of the case.

That's rule 191.2.

In this case,

we note that while the parties briefly communicated by email,

there was no meaningful discussion between counsel regarding the responses to the request for admissions prior to the hearing,

nor was there any discussion regarding the merits of the motion to withdraw the Dean admissions.

And

you know,

they they go on to talk about that.

We indicated in share that parties in a case could have resolved a substantial portion of the discovery disputes.

If they had first engaged in a substantive effort to address their differences using our rules of procedure as a guide.

This case is no different.

Although they made a brief attempt to discuss the responses to the request for production.

It appears the parties never had or attempted to have a substantive dialogue regarding the request for admissions.

Likewise,

our trial courts have broad discretion to sanction abusive tactics.

Our rules of discovery should not be taken lightly by the parties.

And they were not designed to reward attempts to weaponize the discovery process by producing gotcha results.

They have little to do with the merits of the case.

So it's a good dressing down of the parties in that in that case.

Then

the next one that I thought was was significant.

I'm trying to see if there's anything else that I thought was worthwhile.

There were a number of cases,

but some of them are just like him.

You know,

there's another case on

this issue.

There's a,

you know,

another case on on this issue.

So this is out of the Dallas Court of Appeals.

It's important.

Because

it is yet another case that discusses

the fact that you have to up for when you're trying to establish best interest.

And you've got people with drug use that it requires a nexus to between the bad behavior and the drug use.

And this is I think significant because it's post the.

Supreme Court.

Supreme Court's decision in that CPS case where they said that yes,

drug use can per se be considered engagement,

but I don't require a any clock kind of Nexus in that regard.

But I think that that's

appealing to me now.

So

I'm using it for the better interest part.

It was talking about predicate grounds.

But here's the case.

It's

in Ray CBB Charlie Bravo Bravo

2024 Westlaw 3218217 3218217.

It's 0523 000380.

And

the

court held a proof of hearing in the case that consisted of 12 pages.

The transcript was just 12 pages and

the

court was the complaint was

that

mom was appointed

sole managing conservator and the

court rendered an order that basically gave him almost no possession and

access and the court says the Supreme Court discussed the significantly

impaired standard for the parental presumption in Llewellyn versus

Llewellyn and determine the person seeking custody of the child must identify

some act or omission committed by the parent.

That demonstrates naming him as managing conservator will significantly impair the physical

health or the child's physical health or emotional development.

In the discussion part,

they say mom testified father had a history or pattern of abusing both prescription and

illegal drugs.

She alleged he tested positive for cocaine abused Adderall stole Adderall pills from

his sister.

However,

mother failed to present any evidence linking father's alleged drug use with

any actual or probable harm to the child.

They cite ST which is a case.

It says the link between parents conduct and harm to the child may not be based

on evidence that merely right raises a surmise or speculation of possible harm.

Mother also testified father had a documented criminal history.

Similarly,

she did not testify to any.

Details regarding father's alleged transgressions or when they occurred nor did she

seek to admit documentary evidence providing such information as such.

There is no evidence in the record that would allow the court to determine whether

father's alleged criminal conduct could result in actual or probable harm to the child.

We do not minimize allegations of father's drug use.

However,

mother failed to present any evidence father used.

There is no legal or prescription drugs in a manner or under circumstances that

harmed or threatened the child in any way without such evidence.

We cannot conclude that any danger to the child from father's cocaine or Adderall use

rises above mere suspicion or speculation of possible harm.

We reached the same conclusion regarding mother's allegation of documented criminal history.

There's we can.

We can't we cannot conclude that any danger.

From father's criminal history rises above near speculation or survives.

And so they found that the court's appointment of mom and soul managing

conservator was unreasonable and constituted abuse of discretion.

So I think it's a good case because.

I believe that that's.

What?

The law should be and that's what our third court and they do cite the third court's opinion in that

that Justin Triana wrote the opinion on so I still think that's good law and the Supreme Court's opinion

in the in that one termination case didn't change that because if you're looking about the parental

application of the parental presumption that's different than whether you can find drug use to be per se.

The only other case I'll mention to you.

Is out of the amaryllo court of appeals only because I have totally before I love the amaryllo court of appeals and Justice Quinn is a Chief Justice and he it's actually a San Antonio case.

That amaryllo handle it's Jones versus you're reading.

And it's 2024 Westlaw, 3219184, 3219184.

It's 072300233.

And in this case, they start off with,

in a classic trip, a magician places a house cat in a large cage,

seals it, and covers it with a cape.

After uttering a mysterious phrase, the magician unveils a roaring tiger.

The conceit of surprise is central to the art of illusion,

where an initial setup appears to lead to an impossible result.

In litigation, the goal is to uncover the truth, not to conceal it.

Legally speaking, before one pulls a rabbit out of a hat,

litigants should present enough information to reasonably reveal

where one might find a rabbit.

Transparency prevails over misdirection.

When seeking a default judgment, a claimant should, at a minimum,

notify the defendant what is being sought.

And then they go on to say, in this child support appeal,

we review, and then they review it, and then they say,

with apologies to magicians everywhere,

we reveal how the appellee, Uribe, attempted to trick the transforming family,

attempted to trick the transforming family,

the trick of transforming Family Code Chapter 158

into a method for obtaining a court-ordered default judgment

for child support arrearages in a ward of attorneys' fees.

And if you read what goes on in the case,

they were also not very happy.

Steve Sinkin was the attorney,

and they say this about,

him.

At the same time, however,

this first part of the lead-in to this

was apparently the respondent dodged service, right?

And that ran up to the fees.

Well, the court said,

at the same time, however,

much of the sympathy that the court would have felt for the petitioner

diminished in light of her counsel's questionable procedural maneuvers.

These appear to have been taken with the intent to avoid

providing notice to the respondent,

sidestepping Chapter 157's notice and procedures,

misrepresenting the consequences of not responding,

concealing a request for fees,

and engaging in ex parte conduct with the court

to present proposed orders, among other things.

Moreover, other concerning conduct continued throughout the motion to vacate

with Uribe's attorney, i.e. Sinkin,

repeatedly interrupting the court's proceedings,

berating opposing counsel about the finality of the order on arrears,

making numerous speaking objections,

and whispering an answer into his testifying co-counsel's ear.

The trial court, after one hearing,

during which the attorneys could not even agree on who would speak first,

remarked that counsel had worn my patience out today.

The conduct tested the patience of this court as well.

So, they weren't, judges weren't too happy.

All right, you guys have any burning questions?

Has the court heard about, speaking of earlier on

when we were talking about the Anderson case,

any, any, any, we got any judgment on that one?

We got to hear about anything yet?

No, other, you know, Judge Meacham said she was taking it under advisement.

She wanted to see.

She wanted to see the case law on, you know, removal

and the authority to, to, to do that.

And it was not a, it was not a, you know,

it was not Mr. Anderson's finest hour, though,

if you ever watched, if you watched any part of it.

Because the news story.

I was there. I watched, I watched that.

Yes.

And the news stories only briefly touched on,

some of it, you know, but it was, yeah.

So, don't know about that.

Oh, I do know also we're,

and I know you've heard this time and time again,

it is very likely that in September

you will be getting a presentation on the new local rules.

So, finally, what, five years after we've been working on them,

they are, they are in 95% final,

as far as the civil rules are, are concerned.

And we're going to have two,

we have three sections of the rules,

a general section, actually four,

a general section, a section for civil,

a section for criminal,

and then a section for the family court.

And just with any special things

that the family court is supposed to be doing.

And so,

your office is always lit in the comments.

So, the,

just so you know,

the,

the rules have been taken from

all of,

there,

there is not a rule that we will have

that is not somewhere else.

Meaning that none of this

was something that came out of the mind

of the person writing the rules,

which would mean,

I, I made a point of looking in every significant county.

I didn't look at, you know, the little counties,

but, you know, went and got copies of local rules

and basically took their local rules.

So, a lot of it's Travis County,

some of it's Bexar County,

some of it's Collin County, Williamson County.

But none of it was an original thought where I said,

Ooh, let's do this.

So, it, that, that didn't happen.

So, I want everyone to know that.

So, you can't go,

well, this is something Judge Hayes thought of.

This is it.

So, that's where I'm going with it.

Any, any questions?

No questions.

Yes, Mr. George.

I have a couple of questions, Judge.

Okay.

First one, in your opinion,

if, if you've appointed like a friend of the court

or one of these, these appointments,

and they're trying to get information about.

And I've been going crazy about them.

What? I'm sorry.

If you made an appointment to friend of the court

or one of these types of appointments and you,

and they're asking a government agency,

let's say secretary of state to disclose information

necessary to the investigation and the secretary of state

saying, no, that's protected information.

We're not going to give that to you.

Are you aware of any recourse to get that information?

Because I, and then there's the order that says you have to,

you have to hand over all this information,

but, but they're saying it's protected information

specifically maybe for like a notary.

Well, the other than,

is it, isn't there always the ability of the court to,

you know, if you, if you subpoena the information from them,

don't they have to come in requesting some sort of

a protective order to the subpoena?

They, their response was, was just like a privacy act,

general, it's like standard privacy act request,

acting like it's not a subpoena.

Yeah. Well then you,

the next step is you file the compel compliance

with the subpoena and, and do that because there's,

you know, interestingly,

there, there seems to be more protection

um,

granted in the, in the child custody evaluator,

because that, that specifically says you can get

governmental records.

You know, the, the, there's a section of the child custody

evaluator, uh, statute that says you can get governmental

records, um, from any, from law enforcement or any,

any government organization,

and that they remain confidential, um,

by virtue of, you know, that, that they don't,

they don't lose their confidentiality.

So what was your second question?

My next question is more general.

I was just wondering how you decide like attorney's fees.

For example, if, if somebody brought in a request

for attorney's fees that like,

like do you weigh it independently in your experience?

Like that's a lot, or you'd weigh entirely on the evidence.

Like if I come in and say,

I want $30,000 of attorney's fees based on,

um, this thing that should only take two hours to draft,

is there any independent evaluations?

And that seems a bit high, or it's like, well,

let's see what everybody else gives.

No, the, no, the court has to, has to, uh,

only award reasonable and necessary attorney's fees.

So reasonable and necessary attorney's fees.

And so the court has to determine if they're reasonable.

And that's, and that's the, the thing,

because you can end up with, and there's some,

there's cases that talk about where people come in with,

uh, you know, 32,000 and the judge says, no,

it's only, I'm only giving you 10 and they complain.

And it's like, no, the, the judge could find reasonable,

you know, reasonable fees, uh, and, and could only,

you know, could, it was proper for them to award 10.

One last, I have to share this with you.

Uh, I was been looking for it.

And this is a case out of Waco.

And it's, it's funny because of what they put in the opinion.

It's, uh,

Mr.

J C uh,

uh,

so it's, um,

Mike Juliet, uh,

Charlie 2024 Westlaw two nine seven three zero six,

zero two,

nine seven three zero six zero.

Um,

they,

it's a social security disability case.

And the argument,

you know,

they're like,

was that they made they switched custody and said dad you don't owe child support because

your the social security disability payments going to the kid will count as your child support

right and they have this interplay with the because the mother was was still saying i should

get you shouldn't count that i should still get the 460 okay you shouldn't shouldn't do that and

it's this interplay mother contends the trial court refused to hear legal and factual objections and

arguments opposing the proposed 460 a month child support credit mother references the emphasized

portion of the following exchanges to support her contention and then it's like father's attorney

yes from the obligation

it should be subtracted the 460 the child receives will be paid to mother once there's a signed order

and she takes it to social security so essentially the child support ordered obligation would only be

21 because that was the difference between that and the judge the judge then looks over at mother's

attorney and mother's attorney goes that money belongs to the child your honor they don't get

to reduce his child support with that money child support the court

important

interrupts and says well there is money there is money that goes to the child isn't it and the

attorney goes well that money belongs to the child that social security provides court says okay and

the sullivan case this is the mother's attorney sullivan case that we cited dealt with and the

court interrupts and goes yes yeah quit citing cases to me i don't have that case in front of me

you keep telling me you're citing cases and the mother's attorney goes it's attached to the brief

and the court Guo

i write care funded by 10% on the catholic bills being wondering me all day long when I

realize three- Würdmann in зв ils

write Yes absolutely

and the court llegarito

laughs

and the court Ohh

And one last thing and the court this is they bolded this

Times

alternatively mother contends in her first that in her first issue that even if father was entitled

to the child support credit the trial trial court should have still ordered him to pay

21.82 which is the difference between this uh yeah i mean you can't write this stuff so

anyway all right guys so mr fanny went on but we uh we set our uh cle for the 13th of september

friday the 13th um no office hours next time because next uh in august because the fifth is

right during advanced and so i'm not going to do a remote office hours and um we have our luncheon

this month

you

with judge neidhart and we don't have one in september uh this month or september

because we've got our cla and we got advanced i mean for august and september sorry

anything else guys all right have a very happy fourth of july try and keep all of your fingers

and toes so um on that uh with fireworks and all that so thank you

thank you judge thank you bye everybody have a good weekend i'm not weekend holiday