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Maverick
Maverick, Lawyer
Category: Family Law
Satisfied Customers: 5767
Experience:  20 years of professional experience
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On 11-29-12 a SAPCR was signed ordering H to pay W Child &

Customer Question

On 11-29-12 a SAPCR was signed ordering H to pay W Child & medical support. On 11-29-12 W filed for divorce. H along with family members attempted to defraud his W by transfering title in Mom, Aunt, & sister's name, claiming he sold the four rental properties to them. Long story short, to our suprise Judge ruled W will get half interest to two of the four houses. The most suprising of all is he granted to H managing conservatorship with right to determine residency and thus W must now pay child support!! Only small portion of trial dealt with custody, mainly W worked excessive hours & thus relied on her 19 year old to clean the house & care for his two brothers, age 13 & 5. Preschool teacher testified 5 year old often taken to school late by the 19 year old. Teacher mentioned it to 19 yr old but never to W who unaware. Teacher admitted 5 yr old is a top 1/3 of class student. 19 year old is good student. H claimed W allows them roam streets, thats cause they play sports & good students.
They never filed a Motion to Modify the child custody & support order. Will failure to do so make the Judge's ruling void? We are set for hearing for Judge to sign the judgment on Monday. Can you please help us find case law to present to Judge to argue he has no jurisdiction to change the SAPCR status quo. Thank you
Submitted: 5 months ago.
Category: Family Law
Expert:  Maverick replied 5 months ago.

Welcome to Just Answer (“JA”)! My name is Maverick.

Please note: (1) If you want legal advice, you must consult with a local attorney in person before acting or deciding not to act based on any information given here; and (2) I answer most questions within the hour. However, if I am not signed on, please allow up to 24 hours. By continuing, you confirm that you understand and agree to these terms and JA’s site disclaimers presented to you earlier.

I can't promise that I can find case law for you unless it is on a free legal database; but let me try. Can you tell me:

1. How did a hearing get scheduled on these issues if they never filed a motion to modify?

2. What DID H file on this recently and when did the judge have a hearing where he modified the SAPCR [I am presuming it was done orally in open court]?

3. Was an objection lodged at that time since no motion to modify was filed?

4. Does H or W have an attorney?

Customer: replied 5 months ago.

On 6-11-12 SAPCR order was signed W determines residency. H to pay support. 11-29-12 W files for divorce. I represent W & I discover these 4 rental properties were transfered to H's mom, niece, & sister. So I amended my petition for divorce to include a third party action against the family members.

Customer: replied 5 months ago.

We had a bench trial & on 4-28-16 Judge made his ruling. Monday is the date set for Judge to sign the order. I just read our third & last amended petition & found an error...thereare no court ordered conservatorships, affecting the children. Petitioner believes that Petitioner & respondent will enter into a written agreement containing provisions for conservatorship of, possession of, access, & support of the children. If such an agreement is not made, Petitioner request the Court to make orders for conservatorship, possession of, access to, & support of the children.

I'm sorry I overlooked the fact that we had included in our pet. that there was no court ordered conservatorship. I hope that is not fatal to my argument that H's Atty should have filed a motion to modify the SAPCR order. He was present with his first attorney (Wife was pro se) when they appeared in court back in 6-11-12.

Would it help that no home study was ever ordered and that the 13 year old does not want to live with his dad and has threatened to run away. Think I should get a sworn affidavit from him?

Can I file a Motion for New Trial before the Judge signs the judgment on Monday or must I wait till after he signs the judgment?

Would it help to file a motion for the 13 year old requesting to be allowed to move with his mom b/c he hates Dad's girlfriend who practically lives at his house.. Yesterday, W brought me photos someone was able to obtain from facebook they show H & girlfriend embraced in several photos & in one photo they are kissing on the lips. H perjured himself when testified he had never at any time had a romantic relationship with girlfriend. W has always contended GF caused the breakup of her marriage!

Expert:  Maverick replied 5 months ago.

1. If such an agreement is not made, Petitioner request the Court to make orders for conservatorship, possession of, access to, & support of the children. I'm sorry I overlooked the fact that we had included in our pet. that there was no court ordered conservatorship. I hope that is not fatal to my argument that H's Atty should have filed a motion to modify the SAPCR order. He was present with his first attorney (Wife was pro se) when they appeared in court back in 6-11-12.

Ans: It appears that the order entered in 2012 were temporary orders which last until the court enters a final order on these issue at or shortly after the bench/jury trial takes place. So, there would have been no need for H or his lawyer to file a motion to modify.

2. Would it help that no home study was ever ordered and that the 13 year old does not want to live with his dad and has threatened to run away.

No. The home study is only ordered at the discretion of the judge; it is not mandatory. Further, the court only has to consider a child's wishes, it is not bound by them.

3. Think I should get a sworn affidavit from him?

The child should have testified as to his custody preferences at the bench trial. Typically, an affidavit is not admissible evidence. Getting an affidavit now, after the trial is not much help except to support a motion for new trial.

4. Can I file a Motion for New Trial before the Judge signs the judgment on Monday or must I wait till after he signs the judgment?

Here is the rule:

Rule 329b. TIME FOR FILING MOTIONS

The following rules shall be applicable to motions for new trial and motions to modify, correct, or reform judgments (other than motions to correct the record under Rule 216) in all district and county courts:

(a) Motion for new trial, if filed, shall be filed prior to or within thirty days after the judgment or other order complained of is signed.

SO IT CAN BE FILED BEFORE OR AFTER THE JUDGMENT IS SIGNED.

5. Would it help to file a motion for the 13 year old requesting to be allowed to move with his mom b/c he hates Dad's girlfriend who practically lives at his house.. Yesterday, W brought me photos someone was able to obtain from facebook they show H & girlfriend embraced in several photos & in one photo they are kissing on the lips. H perjured himself when testified he had never at any time had a romantic relationship with girlfriend. W has always contended GF caused the breakup of her marriage!

Since the trial has already taken place, the best way to present this is under a motion for new trial. There is this caveat:

A party seeking a new trial on grounds of newly discovered evidence must demonstrate that: (1) the evidence has come to his or her knowledge since the trial, (2) the failure to discover the evidence sooner was not due to a lack of diligence, (3) the evidence is not cumulative, and (4) the evidence is so material it would probably produce a different result if a new trial were granted. See Waffle House, Inc. v. Williams, 313 S.W.3d 796, 813 (Tex. 2010).

Customer: replied 5 months ago.

At trial W testified about the GF & even H's own sister testified she visited H at his house to see her Mom who was visiting. Sister unknowingly walked in on H & GF & testified they jumped out of bed half naked!! When I cross examined H he denied it! He testified that they were just sitting on the bed. When asked what y'all doing sitting on bed? Talking. About what? Don't recall. When I asked if he had ever had, at any time, a sexual or romantic relationship with GF? Incredibly, he answered NO!! I knew I had him, at least I thought, cause I knew no one, much less a Judge will believe that B.S. I caught them in many lies, they looked bad. I felt confident the Judge would give us all four rentals, or close to it as a form of exemplary damages.

Never in my wildest dreams would I believe a Judge would award custody to H. Over what? Mom works too many hours & thus cannot herself take her youngest to school on time! A total miscarriage of justice!!

Expert:  Maverick replied 5 months ago.

I know this type of miscarriage has now become commonplace. You may have had better luck if you opted for a jury trial. But all of this is really water under the bridge as it appears you have a biased judge based on what you have stated and now, he/she is simply going to deny the motion for new trial and force you and your clients to incur the cost of appeal.

Customer: replied 5 months ago.

In our county the local rules do not allow the children to testify. Opposing counsel had filed a motion for in-camera interview of the children but never attempted to have it heard. Since children were with Mom I did not need an in-camera interview. Would a motion to reconsider along with a MNT be helpful?

If we appeal will the appellate court abate the execution of the order?

W ordered to pay child support.

Tomorrow, at the signing of the judgment; if W decides to accept the 50% interest to the two properties awarded to her, that would not in any way harm her appeal of the Judge's order naming H as managing conservator and ordering her to pay child support, right?

Expert:  Maverick replied 5 months ago.

1. Would a motion to reconsider along with a MNT be helpful?

This helps you buy some time; but my experience has been that motions for rehearing rarely succeed.

2. If we appeal will the appellate court abate the execution of the order?

No. See Texas Rule of Appellate Procedure 25.1(g). However, you may supersede the judgment (1) by agreement of the parties; (2) by filing a supersedeas bond; (3) by making a deposit with the trial court clerk; or (4) by providing alternate security ordered by the trial court. See TRAP 24.1(a).

3. W ordered to pay child support. Tomorrow, at the signing of the judgment; if W decides to accept the 50% interest to the two properties awarded to her, that would not in any way harm her appeal of the Judge's order naming H as managing conservator and ordering her to pay child support, right?

You would need to make it clear on the record that you are still preserving right to appeal the custody and support issues and that any agreement or settlement is only with respect property issues.