What is Separate Property and Communtity Property in Texas?

Generally, all property possessed by either spouse during or on dissolution of marriage is presumed to be community property. Tex. Fam. Code Ann. ' 3.003(a) (Vernon 2006); see McKinley v. McKinley, 496 S.W.2d 540, 543 (Tex. 1973). The burden of overcoming the presumption of community property is on the party asserting otherwise by clear and convincing evidence. Licata v. Licata, 11 S.W.2d 269, 272B73 (Tex. App.CHouston [14th Dist.] 1999, pet. denied).

A clear and convincing evidence burden of proof means the measure or degree of proof that will produce in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established. See In re J.F.C., 96 S.W.3d 256, 264 (Tex. 2002).

Whether property is separate or community is determined by its character at the inception of the party's title. Barnett v. Barnett, 67 S.W.3d 107, 111 (Tex. 2001). Inception of title is when a party first has a claim of right to the property by virtue of when title is ultimately vested. Zagorski v. Zagorski, 116 S.W.3d 309, 316 (Tex. App.CHouston [14th Dist.] 2003, pet. denied) (op. on rehg); Smith v. Smith, 22 S.W.3d 140, 145 (Tex. App.CHouston [14th Dist.] 2000. no pet.) (op. on rehg). To overcome the community presumption, the spouse claiming property as his separate property has the burden to trace and clearly identify that property as separate. Zagorski, 116 S.W.3d at 316; Smith, 22 S.W.3d at 144. Tracing involves establishing the separate origin of the property through evidence showing the time and means by which the spouse originally obtained possession of the property. Zagorski, 116 S.W.3d at 316; Smith, 22 S.W.3d at 144.

Rule 11 Agreements and Stipulations in Litigation

A stipulation or Rule 11 agreement in litigation, is "an agreement, admission, or concession made in a judicial proceeding by the parties or their attorneys respecting some matter incident thereto." Travelers Indem. Co. of Rhode Island v. Starkey, 157 S.W.3d 899, 904 (Tex.App.-Dallas 2005, pet.denied) (quoting Shepherd v. Ledford, 962 S.W.2d 28, 33 (Tex.1998)); Ortega-Carter v. American Int'l Adjustment Co., 834 S.W.2d 439, 441-42 (Tex.App.-Dallas 1992, writ denied). To be enforceable, the stipulation must be in writing, signed, and filed as part of the record, or made in open court and entered of record. Tex. R. Civ. P. 11. Stipulations are binding upon the parties, the trial court, and the reviewing court. Id. (citing Jim Sowell Const. Co., Inc. v. Dallas Cent. Appraisal Dist., 900 S.W.2d 82, 84 (Tex.App.-Dallas 1995, writ denied)); M.J.R.'s Fare of Dallas, Inc. v. Permit & License Appeal Bd., 823 S.W.2d 327, 330-31 (Tex.App.-Dallas 1991, writ denied).

Using An Expert Witness In Divorce Property Litigation

In Divorce lawsuits and disputes, and just as with any civil litigation or lawsuit in the State of Texas, Rule 702 of the Texas Rules of Evidence governs the admissibility of expert testimony. Tex. R. Civ. Evid. 702; E. I. du Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549, 554 (Tex. 1995). Rule 702 provides: "if scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise." Tex. R. Civ. Evid. 702. The testimony must be relevant and based on a reliable foundation. See Gammill v. Jack Williams Chevrolet, Inc., 972 S.W.2d 713, 727-28 (Tex. 1998); Robinson, 923 S.W.2d at 554. Once the opposing party objects to proffered expert testimony, the proponent of the witness' testimony bears the burden of demonstrating its admissibility. See Broders v. Heise, 924 S.W.2d 148, 152 (Tex. 1996); Robinson, 923 S.W.2d at 557.

Measuring Breach of Contract Damages in Texas

Generally, the measure of damages for breach of contract is that which restores the injured party to the economic position he would have enjoyed if the contract had been performed. Sava Gumarska v. Advanced Polymer Sciences, Inc., 128 S.W.3d 304, 317 n.6 (Tex. App.-Dallas 2004, no pet.). This measure may include reasonably certain lost profits. See Cmty. Dev. Serv., Inc. v. Replacement Parts Mfg., Inc., 679 S.W.2d 721, 725 (Tex. App.-Houston [1st Dist.] 1984, no writ.) Lost profits are damages for the loss of net income to a business. Miga v. Jensen, 96 S.W.3d 207, 213 (Tex. 2002). Lost profits may be in the form of direct damages, that is, profits lost on the contract itself, or in the form of consequential damages, such as profits lost on other contracts or relationships resulting from the breach. See Continental Holdings, Ltd. v. Leahy, 132 S.W.3d 471, 475 (Tex. App.-Eastland 2003, no pet.). But regardless of whether the lost profits are characterized as direct or consequential damages, the amount of the loss must be shown by competent evidence with reasonable certainty, be based on objective facts, figures, or data, and be predicated on one complete calculation. See Holt, 835 S.W.2d at 84. The injured party must do more than show that they suffered some lost profits. See Szczepanik v. First Southern Trust Co., 883 S.W.2d 648, 649 (Tex. 1994). Finally, consequential damages may not be recovered unless they are foreseeable and traceable to the wrongful act and result from it. See Stuart v. Bayless, 964 S.W.2d 920, 921 (Tex. 1998).

Source:

PAUL MOOD AND K&M DISTRIBUTORS v. KRONOS PRODUCTS, INC.; from Dallas County; 5th district (05-06-00111-CV, 254 SW3d 8, 11-28-07, pet. denied Jun 2008)

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K%26M%20Distributors%20vs.%20Kronos%20Products%20-%20%20Lorenzana%20Law%20Firm.doc

Modification of Child Support: IN THE INTEREST OF J.D.D., B.J.D., AND W.G.D., MINOR CHILDREN

A party may not enlarge a ground of error or an argument to include a claim not raised before the trial court. In re E.A.C., 162 S.W.3d 438, 445 (Tex. App.-Dallas 2005, no pet.); In re Lendman, 170 S.W.3d 894, 898 (Tex. App.-Texarkana 2005, no pet.) (“It is improper to present a new issue on appeal or to expand on the issue that was presented to the trial court.”).

In the case of J.D.D. et. al., the father, an Optician by profession, quit his business by choice. In November 2004, Father had closed his optical dispensing business and was unemployed. In November 2005, Father had abandoned his job with Vision City and was unemployed. Father closed his optical business in October 2004 and was unemployed until May 2005 when he began working at Vision City. He testified he lost his job at Vision City in July 2005 due to illness, he was currently unemployed, and his bankruptcy and criminal conviction made it impossible for him to pass a background check and obtain employment. However, according to Vision City's records, Father abandoned his job on July 28, 2005, shortly after the trial court entered a judgment ordering Father to pay over $45,000 in child support arrearages on a set schedule and immediately after Father was convicted of criminal nonsupport. There was no evidence Vision City would have terminated Father's employment due to the criminal conviction. Further, despite his claims of illness, Father completed a job application with a different potential employer on July 28, 2005, the same day Vision City noted he had abandoned his job.

Reasoning that there had been no material and substantial change to the father's status or ability to pay child support, the Texas high court stated that a Father's duty to pay support is not limited to his ability to pay from current earnings, but also extends to his ability to pay from any and all sources that might be available. Act of Apr. 6, 1995, 74th Leg., R.S., ch. 20, § 1, 1995 Tex. Gen. Laws 113, 160 (amended 2007) (current version at Tex. Fam. Code Ann. § 154.062 (Vernon Supp. 2007)); Garner, 200 S.W.3d at 306, 308.

Standard of Review for Child Support Modification

Material and Substantial Change

In Texas, a trial court may modify a previous child support order if “the circumstances of the child or a person affected by the order have materially and substantially changed” since the date of the order's rendition. Act of May 29, 2005, 79th Leg., R.S., ch. 916, § 19, 2005 Tex. Gen. Laws 3148, 3154 (amended 2007) (current version at Tex. Fam. Code Ann. § 156.401(a)(1) (Vernon Supp. 2007)). As the movant, Father had the burden to show the requisite material and substantial change in circumstances since the entry of the previous order. Cameron v. Cameron, 158 S.W.3d 680, 682 (Tex. App.-Dallas 2005, pet. denied).

Brooks v. Brooks: Family Law Mediated Settlement Can Be Set Aside

In the case of Gary Brooks vs. Dana Brooks, the parties entered into a mediated settlement agreement but later agreed to set it aside by Rule 11 Agreement and proceed to trial.

Background Facts

Appellant Gary Dean Brooks and appellee Dana Ledon Brooks were married for over thirty years. On March 6, 2003, Dana filed for divorce; Gary answered and counterpetitioned for divorce on March 12, 2003. On May 20, 2004, Dana and Gary entered into a mediated settlement agreement (MSA) dividing their property in accordance with section 6.602 of the Texas Family Code. The MSA was filed in the court record. Both parties and their attorneys signed the agreement. Over a year later, on November 15, 2005, Dana's and Gary's attorneys, but not Dana and Gary, signed a letter, which they also filed in the court record, stating, Pursuant to our conversation today it is agreed that the mediated settlement agreement dated May 20, 2004 is void and this matter will be mediated again at a time mutually agreed upon by the parties and attorneys. The parties subsequently tried the case on December 18, 2006, over a year later.

Issue

Whether a party to a mediated settlement agreement meeting the requirements of family code section 6.602 is estopped from enforcing the agreement after he has agreed to set it aside and go to trial. Tex. Fam. Code Ann. ' 6.602 (Vernon 2006).

Supreme Court Opinion

Generally, Texas has a public policy of encouraging the peaceful resolution of disputes, particularly those involving the parent-child relationship, and the early settlement of pending litigation through voluntary settlement procedures. Tex. Civ. Prac. & Rem. Code Ann. § 154.002 (Vernon 2005); Boyd v. Boyd, 67 S.W.3d 398, 402 (Tex. App.- Fort Worth 2002, no pet.). Trial and appellate courts are charged with the responsibility of carrying out this public policy. Tex. Civ. Prac. & Rem. Code Ann. § 152.003 (Vernon 2005); Boyd, 67 S.W.3d at 402; Adams v. Petrade Int'l, Inc., 754 S.W.2d 696, 715 (Tex. App.-Houston [1st Dist.] 1988, writ denied) (op. on reh'g). The Texas Family Code also furthers this policy by providing that a mediated settlement agreement is binding on the parties if the agreement(1) provides, in a prominently displayed statement that is in boldfaced type or capital letters or underlined, that the agreement is not subject to revocation;(2) is signed by each party to the agreement; and(3) is signed by the party's attorney, if any, who is present at the time the agreement is signed.

In this case however, the high court ruled that the appellant was estopped from enforcing the mediated settlement agreement because of its actions in agreeing to set it aside and proceed with trial.

Eminent Domain: State of Texas v. Dawmar Partners, Ltd.

Recently, the Texas Supreme Court issued its decision determining whether a landowner is entitled to severance damages resulting from permanent denial of direct access to the highway if the restrictions on access changed the “highest and best use” of the property from commercial to residential. The high court opined that the landowners are not entitled to compensation for diminished value of the remainder because they have not suffered a material and substantial impairment of access.

Contrary to popular belief, not all diminished value in a condemnation case is compensable. In Texas anyway, it is well settled that diminished value resulting from impaired access is compensable only when access is materially and substantially impaired. City of Waco v. Texland Corp., 446 S.W.2d 1, 2 (Tex. 1969). Whether access has been materially and substantially impaired is a threshold question of law reviewed de novo. City of San Antonio v. TPLP Office Park Props., L.P., 218 S.W.3d 60, 66 (Tex. 2007) (citing State v. Heal, 917 S.W.2d 6, 9 (Tex. 1996)).

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State%20of%20Texas%20v%20Dawmer%20-%20Lorenzana%20Law%20Firm.doc

Due Process Necessary Before Temporary Orders for Grandparent Visitaion

In a per curiam decision, the Texas Supreme Court granted writ of mandamus to reverse a trial court's decision to grant temporary orders for grandparent visitation without hearing the custodial parent's evidence.
The case of In Re Chambless, No. 07-0767 (Tex. 2008), the Supreme Court reasoned that the custodial parent's due process rights were not afforded at the trial level when the trial court granted temporary orders for grandparent visitation without hearing evidence from the custodial parent pending final hearing on the merits.

Possession of or access to a child by a grandparent is governed by the standards established by Chapter 153 [of the Texas Family Code].” Tex. Fam. Code § 102.004(c). A grandparent seeking court-ordered visitation must overcome the presumption that a parent acts in the best interest of the child by proving by a preponderance of the evidence that denial of possession of or access would significantly impair the child’s physical health or emotional well-being. See § 153.433(2). A trial court abuses its discretion when it grants access to a grandparent who has not met this standard. In re Derzapf, 219 S.W.3d 327, 333 (Tex. 2007) (per curiam).

In the case of Chambless, the custodial parent was not afforded to present her evidence before the trial court issued temporary orders for the grandparent visitation, thus not affording her due process rights as reasoned by the Texas highest court.

This case presents some logistical issues when petitioning for grandparent access. Most family law cases relating to suit affecting parent child relationship usually seek temporary orders prior to a final hearing on the merits. With this decision, the question then begs that no temporary orders could be issued by any lower court without affording all parties an evidentiary hearing.

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In%20re%20Chambless%20-%20Lorenzana%20Law%20Firm.doc