Monday, February 28, 2022

Build your child’s support system during your divorce

Learning that their parents are divorcing is a traumatic experience for children. Trying to navigate through the new way of life can be a challenge for the kids. Some children may talk about their feelings related to the divorce to their parents, but it’s often necessary for them to have a bigger support system.

It might be helpful for the children to have other trusted adults that they can turn to when they need to talk. These individuals can also help the parents to ensure that there aren’t any emerging issues that need to be addressed.

Who should be in a child’s support system?

Your child has to be able to trust the adults who are around them. Even if your child never talks to them about the divorce, these adults can still help to support the child. It might be helpful for you to let these adults know the situation so they can be prepared if the child comes to them.

Your child may feel comfortable talking to teachers, coaches, religious leaders, or their best friend’s parents. Having multiple options of who they want to speak to when they need someone may encourage them to be more open about what’s going on.

You and your ex should pay close attention to how the children are faring. One thing that can help them to thrive is having a parenting plan in place as fast as possible when you split up. This sets the terms for the parenting arrangement and includes the schedule they will follow. Knowing what to expect can help them to feel more secure.

 



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Supreme Court Update on Tax Cases (March 1, 2022)

Multiple federal tax cases continue to make their way to the U.S. Supreme Court, and it has certainly been interesting to monitor changes and updates to the Court’s docket. I previously wrote a blog on the oral arguments held on January 12, 2022, in Boechler, P.C. v. Comm’r[1] that addressed whether the time limit in Section 6330(d)(1) is a jurisdictional requirement for Tax Court petitions. See CDP Proceedings—Is the Time Limit in Section 6330(d)(1) a Jurisdictional Requirement for Tax Court Petitions?. Even Freeman Law is awaiting the Court’s decision on its Petition for Writ of Certiorari in   Rivero v. Fidelity Invs., Inc.[2] Last week, however, the Supreme Court denied certiorari for three tax cases described in more detail below.

Supreme Court Tax Case Denials

On February 22, 2022, the U.S. Supreme Court granted two petitions for a writ of certiorari. At that same time, it denied a multitude of other petitions, including three pertinent tax cases: (1) Maehr v. United States Dep’t of State; (2) Montero v. United States; and (3) Harris v. Comm’r of Internal Revenue.

  1. Maehr v. United States Dep’t of State[3]

Jeffrey T. Maehr, represented by Polsinelli PC in Denver, Colorado, filed a lawsuit against the U.S. Department of State in the U.S. District Court for the District of Colorado. Mr. Maehr claimed, in part, that the Department of State violated his right to due process by revoking his passport before the issue of whether he had a seriously delinquent tax debt had been resolved.

The United States, represented by E. Carmen Ramirez, filed a motion to dismiss. The district court granted the motion to dismiss, finding that Section 7345 of the Code was constitutional as applied to Mr. Maehr.

Mr. Maehr appealed the district court’s decision to the Tenth Circuit Court of Appeals. The Tenth Circuit affirmed the district court’s decision, holding:

    • On issue of first impression, waiver of sovereign immunity could be applied to claim that Department of State acted unconstitutionally by revoking citizen’s passport;
    • Article IV Privileges and Immunities Clause and Privileges or Immunities Clause of the Fourteenth Amendment did not apply to federal government and did not protect any right to international travel; and
    • Restricting international travel of taxpayer who was seriously delinquent in paying his taxes by revoking his passport was rationally based on legitimate government interest.

Mr. Maehr appealed the Tenth Circuit’s decision, but the Supreme Court denied Mr. Maehr’s petition for writ of certiorari.

For access to Mr. Maehr’s petition for writ of certiorari, click here.

  1. Montero v. United States[4]

Adolfo S. Montero, a resident of Pflugerville, Texas, proceeding pro se, filed a lawsuit against the Internal Revenue Service in the U.S. District Court for the Western District of Texas. Mr. Montero sought various forms of relief, including refunds of federal taxes withheld and damages against the IRS.

The United States, represented by Curtis Smith, filed a motion to dismiss. The district court granted the motion to dismiss, finding that Mr. Montero (1) failed to exhaust all administrative remedies available to him, and (2) failed to pay his taxes before filing suit. Mr. Montero subsequently filed a motion for reconsideration, which the district court denied.

Mr. Montero appealed the district court’s decision to the Fifth Circuit Court of Appeals. The Fifth Circuit—not amused by Mr. Montero’s argument that he was not a “taxpayer” and, therefore, the prerequisites for filing a refund suit did not apply to him—affirmed the district court’s decision. Mr. Montero appealed the Fifth Circuit’s decision, but the Supreme Court denied Mr. Montero’s petition for writ of certiorari.

For access to Mr. Montero’s petition for writ of certiorari, click here.

  1. Harris v. Comm’r of Internal Revenue[5]

Joshua Harris, a resident of South Ozone Park, New York, proceeding pro se, challenged a notice of deficiency issued by the IRS in U.S. Tax Court. The IRS conceded certain deductions to which Mr. Harris was entitled to, but Mr. Harris failed to appear for trial. The Tax Court dismissed the case and entered judgment in favor of the IRS in the amount on the notice.

Mr. Harris appealed the Tax Court’s decision to the Second Circuit Court of Appeals. The Second Circuit affirmed the Tax Court’s decision, except that the Tax Court should redetermine Mr. Harris’ deficiencies and penalties in light of the IRS’s pretrial concessions. On remand, the Tax Court redetermined Mr. Harris’ deficiencies and penalties, and Mr. Harris appealed again.

The Second Circuit found Mr. Harris’ second appeal to be without merit, holding, in part, that the Tax Court did not err in its factual findings or legal conclusions. Mr. Harris, attempting to raise new arguments for the first time on appeal, was denied. Mr. Harris appealed the Second Circuit’s decision, but the Supreme Court denied Mr. Harris’ petition for writ of certiorari.

For access to Mr. Harris’ petition for writ of certiorari, click here.

Conclusion

Perhaps the most interesting case of those describe above is Maehr v. United States Dep’t of State. The legal developments related to Section 7345 are particularly notable, as the law allows the State Department to deny or revoke a taxpayer’s passport once the IRS certifies that the taxpayer has a “seriously delinquent tax debt.” This case is also notable since the Tenth Circuit was the first appellate court to address the constitutionality of Section 7345. Maehr will certainly not be the last time a constitutional challenge to Section 7345 reaches the Supreme Court. Further, notwithstanding the recent string of denials of tax cases, the Court still has other tax cases that it might consider, and we hope Rivero is one of them.

 

Expert Tax Defense Attorneys

Need help with tax issues involving potential federal litigation? Contact us as soon as possible to discuss your rights and the ways we can assist in your defense. We handle all types of cases, including federal tax cases. Schedule a Consultation Today!

 

[1] Boechler, P.C. v. Comm’r, 967 F.3d 760 (8th Cir. 2020), cert. granted, 142 S. Ct. 55 (2021).

[2] Rivero v. Fidelity Invs., Inc., 1 F.4th 340 (5th Cir. 2021), petition for cert. pending.

[3] Maehr v. United States Dep’t of State, 5 F.4th 1100 (10th Cir. 2021), cert. denied sub nom. Maehr v. Dep’t of State, No. 21-912, 2022 WL 515963 (U.S. Feb. 22, 2022).

[4] Montero v. United States, No. 21-50237, 2021 WL 4314057 (5th Cir. 2021), cert. denied, No. 21-925, 2022 WL 516004 (U.S. Feb. 22, 2022).

[5] Harris v. Comm’r of Internal Revenue, 837 F. App’x 839 (2d Cir. 2021), cert. denied sub nom. Harris v. CIR, No. 21-1035, 2022 WL 516027 (U.S. Feb. 22, 2022)

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Individual is not a corporation

In a restricted appeal: “[T]he face of the record shows that appellee filed suit against a Texas corporation named either Joe Prado DBA J.P. Enterprises or Joe Prado ‘JP Enterprises.’ The return of service shows that Joe Prado was served but does not indicate his capacity to receive service on behalf of the purported corporation. Moreover, no other portion of the record indicates Joe Prado’s authority to receive service on behalf of the corporation. We conclude the face of the record fails to show strict compliance with the rules governing return of service; thus, the trial court lacked jurisdiction to render a default judgment against JP Enterprises.” Prado v. Nichols, No. 05-20-01092-CV (Feb. 25, 2022) (mem. op.) (citation omitted, emphasis added).

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What is Murder vs Capital Murder DFW Murder Defense Lawyers Broden & Mickelsen

Aggravating Factors and Special Circumstances Explained by DFW Defense Attorney

Texas law differs from federal law and other state laws in that it does not distinguish different degrees of murder. Instead, there are four kinds of criminal homicide in Texas: capital murder, murder, manslaughter, and criminally negligent homicide. 

In this article, we explain the differences between murder and capital murder in Texas. As criminal defense lawyers in Dallas, we have handled hundreds of violent crimes cases at Broden & Mickelsen and achieved favorable results for our clients.

Related: What is the Difference Between Manslaughter and Criminally Negligent Homicide? Texas Defense Lawyer Mick Mickelsen Explains 

Murder in Texas Legal Definition

According to the Texas Penal Code, there are three main circumstances that constitute murder in the state of Texas. To have committed a murder, an individual must have done one of three things: 

  1. Intentionally or knowingly caused the death of another individual.
  2. Committed an act clearly dangerous to human life with the intent to cause serious bodily injury, leading to the death of another individual.
  3. Committed an act clearly dangerous to human life while committing or attempting to commit a felony, or during the immediate flight from the crime or attempted crime, leading to the death of another individual. 

Murder is a first-degree felony in Texas, which means that those convicted of murder will receive a sentence of five to ninety-nine years in prison. 

What is the Difference Between Murder and Capital Murder in Texas?

Capital murder in Texas occurs when a murder case involves one or more of the aggravating factors outlined in the Texas Penal Code. These aggravating factors are explained below.

Murdering Specific Victims 

Murdering specific victims will always elevate a murder charge to a capital murder charge. These include: 

  • Peace officers and firemen provided that they are acting in the lawful discharge of their official duties and that the perpetrator knows the victim is a peace officer or fireman.
  • Employees of a penal institution in which the perpetrator is legally detained.
  • Children under the age of ten.
  • Children between ten and fifteen years old. 

A judge or justice (of the supreme court, the court of criminal appeals, a court of appeals, a district court, a criminal district court, a constitutional county court, a statutory county court, a justice court, or a municipal court), if the murder is committed in retaliation for the victim’s status or service as a judge or justice. 

Committing a Murder While Incarcerated

A murder may be elevated to capital murder if committed while incarcerated under certain circumstances, including: 

  • A murder that was committed while escaping or attempting to escape from a penal institution.
  • A murder that was committed in a penal institution with the goal of establishing or maintaining a profit. 
  • A murder that was committed by an individual in a penal institution who is serving a sentence for murder, capital murder, or while serving a life sentence or a sentence of 99 years.

Committing a Murder During Other Crimes

The other circumstances that elevate a murder charge to a capital murder charge involve the murder being committed in combination with other criminal offenses:

  • A murder that was intentionally committed while the perpetrator was committing or attempting to commit certain crimes, including kidnapping, burglary, robbery, aggravated sexual assault, arson, obstruction or retaliation, or a terroristic threat. 
  • A murder that was committed for remuneration (monetary payment) or the promise of remuneration. In this case, both the person who was hired to commit the murder and the person who hired the murderer can be charged with capital murder. 
  • Multiple murders that were committed either at the same time or at different times but in pursuit of the same criminal scheme or course of conduct. 

What Are the Penalties for Capital Murder in Texas?

Capital murder is a capital felony in Texas, which means that it carries harsher penalties than regular murder charges. Those convicted of capital murder will receive either a life sentence in prison or the death penalty. 

What Are Special Issues In a Capital Murder Case?

In Texas capital murder cases, the death penalty is on the table. Texas is one of 31 states where capital punishment is an option for particularly heinous crimes. When delivering a guilty verdict in a capital murder case, the jury is asked to consider three special issues to decide whether the defendant should be sentenced to capital punishment or to a life sentence. 

For the defendant to be sentenced to capital punishment in a Texas capital murder case, the jury must answer “yes” to the first two special issues and “no” to the third special issue. Ten of the jurors must be in agreement beyond a reasonable doubt for an answer of “yes” to be accepted for either of the first two special issues. 

Special Issue #1

The first special issue asks the jury to decide if there is a probability that the defendant would commit criminal acts of violence that constitute a threat to society. 

Special Issue #2

The second special issue that the jury must consider involves the intent of the perpetrator. It can be broken down into three main parts:

  1. Did the defendant actually cause the death of the victim?
  2. If the defendant did not actually cause the death of the victim, did they intend to kill the deceased or to kill another person?
  3. If the defendant did not actually cause the death of the victim, did they anticipate that a human life would be taken as a result of their actions? 

Special Issue #3

If the jury answers “yes” to both of the first two special issues, they will then be asked to consider the third special issue, which involves looking at the defendant’s character, background, and moral circumstances to determine if there are any mitigating factors that make a life sentence in prison without parole a more appropriate sentence than the death penalty. 

Capital Murder Defense Strategies in Texas

If you or a loved one has been accused of or charged with a crime as serious as murder or capital murder, you may feel hopeless or like there is nothing you can do but accept your fate. However, the prosecution must be able to prove beyond a reasonable doubt the defendant intentionally caused the death of the deceased. With a knowledgeable defense attorney who has experience handling Texas murder and capital murder, you may be able to get the charges against you dropped or lowered to less serious charges, depending on the circumstances of your particular case. 

Several common murder defense strategies that may be used include:

Lack of intent.

Accidents do occur and in some cases, defendants may be accused of intentionally killing someone when, in fact, they were involved in an accident. Furthermore, the defendant may not have intended for their actions to lead to the death of the victim. To prove that a murder occurred, the prosecution must be able to show that the alleged perpetrator intended for their actions to kill the victim. If the defense can provide evidence that the defendant did not intend for the victim to die, the outcome of your case is likely to be more favorable. 

Self-defense.

Texas is one of the twenty-five states that use “stand your ground” law, which means that you are allowed to confront a violent threat with the use of force. To successfully argue that a homicide was self-defense and was therefore justified, the defendant must show several things:

  • they reasonably feared death or bodily harm from the victim (verbal threats and insults are unlikely to be enough to show this).
  • the defendant used a reasonable amount of force that was proportional to the severity of the threat. For example, it would be difficult to argue that shooting someone multiple times was a reasonable or proportional response to being shoved in the shoulder. 
  • the defendant must not have instigated the threatening situation. In other words, if you punched someone first, they retaliated to defend themselves, and you ended up killing them, you would not be able to argue self-defense, because you instigated the threat. 
  • the defendant must not have used force after the threat of death or bodily harm has passed. Showing up to someone’s house with a knife hours after they threatened you is not justifiable. 

Sudden passion arising from adequate cause. 

The Texas Penal Code notes that the defendant may be able to argue that the alleged crime was the result of a “sudden passion arising from adequate cause.” The Penal Code defines sudden passion as “passion directly caused by and arising out of provocation by the individual killed or another acting with the person killed.” Adequate cause is defined as “cause that would commonly produce a degree of anger, rage, resentment, or terror in a person of ordinary temper, sufficient to render the mind incapable of cool reflection.” 

It is important to note that showing sudden passion arising from adequate cause does not mean your charges will be dismissed. However, if successful, this strategy will result in having your charges reduced to a second-degree felony, resulting in a prison sentence of between two and twenty years. 

Dallas Violent Crimes Attorneys — Broden & Mickelsen

If you have been charged with a violent criminal offense in Texas, it is crucial to discuss your case with a criminal defense lawyer who has experience handling Texas violent crimes cases. Broden & Mickelsen provides aggressive and ethical representation to individuals and businesses accused of criminal offenses. The firm accomplishes this through its unique team approach to criminal defense, which involves both partners actively participating in the case.

To achieve a favorable resolution, Broden and Mickelsen evaluate each case individually and utilize all the resources available. The Texas Board of Legal Specialization has certified criminal defense attorneys Clint Broden and Mick Mickelsen as experts in criminal law for trials and appeals.

Call Broden & Mickelsen to discuss the details of your case today: (214) 720-9552. 



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Eastland Court of Appeals Rules Oil Company Not Liable for Dead Cows

When over 100 cattle died after exposure from oil and saltwater from oil and gas operations, their owner sued the oil company.  The Eastland Court of Appeals affirmed a take nothing judgment and dismissal in Foote v. Texcel Exploration, Inc.

Background

Mr. Foote leased property in Knox County, Texas on which he grazed 650 head of cows.  He hired Mr. Cypert to care for the cattle on the lease. Foote traveled to Knox County, met with Cypert, and went to look at Cypert’s facilities and operations.  Foote did not go see the pasture he leased prior to sending the cattle.

Texcel leased the mineral rights to some portion of the leased property.  The mineral lease did not require Texcel to fence off its portion of the property or equipment.

Mr. Decker is the pumper for Texcel on this lease.  He checked the lease every day around 8:00 am.  The landowner notified Decker before the cattle were turned out on the lease, and Decker notified Texcel’s owner.  Texcel’s owner instructed Decker to contact the electrician to ensure the electric fence around the tank battery and wellsite on the lease was working.

Decker testified that as soon as the cattle were turned out on the lease, they began to knock down the fence and get inside the operations area by the tank battery.  Decker called the Texcel’s owner who told Decker to have the fence repaired.  The electrician came to see if the fence was still hot, but Decker testified cattle continued to get inside the fenced area.  Decker testified that he would “shoo” the cattle out, repair the fence, and ensure the wire was hot before leaving.

Decker testified he told Cypert’s employee that the cattle were tearing the fence down every day.  Cypert testified that he never saw the cows in the area around the tank battery, and that Decker never told him about them tearing down the fence.  However, Cypert did testify that the cattle had knocked down the fence on a couple of occasions when Cypert had to set it back up and make adjustments.

About a month into the grazing lease, numerous cattle were injured and many died.  That morning, Decker arrived at 8:00 to check the equipment. He testified when he left the location, the fence was up and hot. That afternoon, when Cypert checked on the cattle, he found oil and saltwater on the cows, in the tank battery area, and in the pasture.  Apparently, sometime during the day, the cattle pushed through the fence and broke a PVC pipe on a holding tank, causing a spill of oil and saltwater.  As a result, 132 head of cattle died.

After the accident, Texcel’s owner remediated the spill and notified the Railroad Commission that he planned to have a new fence built around the battery.  Before Texcel could do so, Cypert had a barbed wire fence built.  He sought reimbursement for this expense from Texcel, but Texcel refused.

Trial

Foote and Cypert filed suit against Texcel and Decker.  Foote sought damage for the value of the 132 dead cows, veterinary bills, special feed costs, shipping cost to relocate cattle, and lost profits from the surviving cattle being sold under expected weight.  Cypert sought reimbursement for the cost of the barbed wire fence.

A jury trial was held.  The jury found in favor of Texcel and Decker, issuing a take-nothing verdict.

Foote and Cypert filed a motion for new trial when it came out that one of the jurors withheld information during voir dire about a prior “physical alteration” between Cypert and her husband.  The motion for new trial on these grounds was overruled.

Foote and Cypert (“Appellants”) filed this appeal.

Basic Premises Liability Law 

In a premises liability case, the duty of an owner or occupier of land owes to a person injured on the property depends on the injured person’s status as either an invitee, licensee, or trespasser.  [To read about this in more detail, see Chapter 5 of my Owning Your Piece of Texas handbook.]

Appellate Decision

The Eastland Court of Appeals affirmed. [Read Opinion here.]

The court first noted that the applicable law in cases involving cattle injured by and oil or gas operation is well-established in Texas.  “The owner/lessee of the surface estate in order to recover against the mineral lessee or operator for injury to his cattle must plead, prove, and obtain a jury finding on one of the following:  (1) the lessee/operator intentionally, willfully, or wantonly injured the cattle, or (2) the lessee/operator used more of the land than was reasonably necessary for carrying out the purposes of his lease and that as a result of some negligent act or omission on his part, he proximately caused an injury to the surface owner/lessee’s cattle.”

The court noted that Appellants did not seek or obtain jury findings on either of these two viable theories of liability.

Premises Liability Theory

Instead of seeking recovery on the theories above, Appellants sought to expand the law by asserting that a premises liability claim should be allowed.  This request “to expand the law is unwarranted,” the court ruled.

Invitee Status

Appellants claim that because Foote had the grazing lease, his status as an invitee should be extended to his cattle for the entire area, including the area where Texcel was conducting its operations.  Further, they argued, the saltwater spilled beyond the fenced-in tank battery area into the wheat pasture which Foote leased.  Based on this, Appellants argued that the cattle were invitees as a matter of law.

The appellate court disagreed, finding the cattle were not invitees in the area where oil and gas operations were conducted.  They noted that Appellants cited no cases categorizing livestock as “persons” in the context of a premises liability case.  Further, in the absence of a lease provision to the contrary, the court held that the only duty an oil and gas operator owes to a surface grazing tenant is not to intentionally, willfully, or wantonly injure the cattle.  Based on this, the court held that cattle were more properly treated as trespassers, as the duty owed to a trespassing person under the premises liability framework is to refrain from injuring someone willfully, wantonly, or by grossly negligent conduct.  The court held that the cattle were, if anything, trespassers.  Because there was no evidence of any willful, wanton, or intentional conduct, Texcel did not violate its duty.

Escaped Saltwater

As to the argument that some of the saltwater escaped the fenced-in operations area, the court noted that Texas law is clear that an operator has no duty to fence or otherwise prevent livestock from entering the premises of a mineral lease.  Further, it was the cattle invading the operations area that caused the leak.

Negligence & Unreasonable Use

Texas law allows a cause of action for the owner or lessee of the surface when the action of an operator negligently allows a dangerous substance to invade the surface owner’s land–exceeding the operator’s allowed “reasonable use.”  The court notes that these types of cases are characterized as injury-to-land rather than injury-to-cattle.  However, Appellants did not pease or prove that Texcel’s use of the surface was more than reasonably necessary for their operation.

Negligent Undertaking

Next, the Appellants argue a claim of negligent undertaking, particularly that Texcel’s fence was inadequately built and maintained, resulting in harm to the cattle by letting them enter the operations area.  Appellants essentially argue that because Texcel built and maintained the fence, that created a duty for them to do so in a particular manner.

The court rejected this claim based on well-settled Texas law that an oil and gas operator has no duty to fence off the area of operations to keep livestock out.  Further, the fact that an operator chooses to build a fence does not create any duty or obligation to fence off the operations area.  Finally, it was not the fence itself that caused harm to the cattle.  Thus, this issue was overruled.

Jury Misconduct

Appellants argued the trial court erred in denying their motion for new trial based on juror misconduct.  In order to warrant a new trial for jury misconduct, the movant must prove: (1) misconduct occurred; (2) it was material and (3) it probably caused injury.

The court noted that although Appellants claimed juror misconduct because the juror failed to disclose her husband had a physical altercation with Cypert, they did not prove or allege that the juror knew Cypert or was aware of the altercation.  They failed to provide any affidavit from the juror or Cypert regarding the situation or the juror’s knowledge thereof. Further, the attorneys did not ask the jurors whether they or their family had been in any altercations with Cypert.

Even if the court were to find the failure to disclose was misconduct, there was no evidence that the Appellants probably suffered injury from it.  The jury’s verdict was unanimous, there was no evidence that her misconduct affected the outcome in any way.  Further, because the court determined as a matter of law the cattle were not licensees, but trespassers, there was no way for the Appellants to show injury from the juror.

Additional Issues

There were a number of additional issues overruled by that court that are not included in this post, but are discussed in the full opinion.

Thus, the take nothing judgment was affirmed, and the case was dismissed.

Key Takeaways 

First, this case is a good reminder about the lack of responsibility for oil and gas operators to fence operations areas to keep livestock out.  We’ve written about that before here.  When placing livestock on land with active oil and gas operations, the livestock owner should carefully inspect the fences and understand there is no obligation on the company to fence the livestock out.  The one exception to this rule is that if the mineral lease required such fencing, then this obligation would be placed on the operator.  This is a critical reminder to carefully negotiate oil and gas leases to protect any surface activities.

Second, the circumstances where a livestock owner may recover from an oil and gas company for injuries to or death of cattle are extremely limited.  As noted above, only in two situations–proving willful, wanton, or intentional actions or showing more than reasonable use of the property due to a negligent action–is recovery permitted.  These requirements make a successful suit difficult.

Third, this case indicates that Texas courts will not confer premises liability status on livestock.

Finally, for anyone leasing land and hiring a third party to care for livestock, it is critical to carefully inspect all land and carefully vet the selected caretaker.  It is not uncommon to see issues arise in these types of agreements for livestock care.

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Credibility and Evidence in Texas Child-Support Modification Proceeding

A modification of Texas child support requires the parent seeking the modification to show there has been a material and substantial change in circumstances since the current order was rendered. Tex. Fam. Code § 156.401. A change in income may be a material and substantial change.  A court’s primary consideration should be the child’s best interest.

A father recently appealed the denial of his petition for modification of child support.

The parties divorced in 2018.  The father agreed to pay $2,000 in monthly child support, to provide health insurance,  to make monthly payments for a credit card balance that had been used for his business, and to pay the mother $50,000 in $1,500 monthly payments for her community interest in the business.

Father Seeks Reduced Child Support After Becoming Delinquent

The trial court held the father in contempt after he became delinquent in the child-support payments.  The trial court also found he had stopped making the other payments in the agreed decree.

The father petitioned to reduce the child support.  The children who were three and six years old participated in gymnastics.  The younger child had some medical issues, was in her school’s special needs program, and needed speech and occupational therapy.  The older child had been involved with several other activities, but the mother testified she had to stop when the father stopped paying child support.

The father testified he stopped making payments because he did not have the money after his business failed.  He testified he opened his flooring business with a partner during the marriage and subsequently bought the partner out.  He testified he made up to $120,000 a year during the marriage.  The mother testified, however, that he made more than $150,000 annually, because the business’s cash was used to pay household expenses. A valuation set the value of the business at $635,000 during the divorce proceeding.

The father testified he walked away from the business because he was unable to keep up with bills, it “had a lot of repairs,” it lost three large clients, it was evicted, and it had three high-interest loans.  He did not have any evidence of the eviction and admitted that a friend took over the business.

The father provided bank records, including statements for a new company and his personal bank account.  He argued the records showed his income had decreased to nearly nothing. He did not provide evidence of his current income, however. He admitted he earned “3 to 3,500 bucks” working for another company between July and October of 2019.  His new company’s bank records showed he earned $4,208.96 in August and $4,748.85 in September. He paid just $875 in child support and arrearages in August and $75 in September.  He also submitted records showing he earned $682.82 driving for a ride share service for three months. He testified he could not afford insurance for his vehicle and lost that job.

Trial Court Finds Father Not Credible; Father Appeals

The trial court denied the petition. It found the father was not credible, did not show a material and substantial change of circumstances, and did not show the modification would be in the best interest of the children.

The father appealed.  He argued the finding he was not credible was alone insufficient to support the  denial of the modification because other evidence demonstrated a material and substantial change of circumstances.  The appeals court rejected this argument, noting the credibility finding affected how it viewed the evidence, weighed the evidence, and resolved conflicts in evidence, rather than being considered in isolation.

The father also argued the trial court abused its discretion in not following the child-support guidelines.  A court is not required to apply the guidelines in a modification proceeding, however.

The father further argued the trial court abused its discretion, because the evidence showed a material change in circumstances.  The trial court could have considered testimony that the business’s cash had been used to pay for household expenses and concluded the bank records did not accurately reflect the father’s complete financial circumstances. The appeals court found that, in light of the evidence and the trial court’s credibility finding, the father failed to show an abuse of discretion in the court’s finding he had not demonstrated a material and substantial change.

The father testified he thought the modification would be in the best interest of the children, but the mother testified otherwise.  She testified the older daughter had to stop participating in some activities after the father stopped paying child support.  She testified participation in activities was in the children’s best interest and they would be negatively affected if the child support were reduced.  The trial court could have believed the mother. Her testimony constituted evidence that supported its decision, so the court did not abuse its discretion in finding the father had not shown the modification was in the best interest of the children.

The father also argued the court abused its discretion in admitting the business valuation report into evidence.  The father objected to the report, arguing it was hearsay and not relevant.  The mother argued it was relevant to her allegations the father was intentionally unemployed or underemployed.  She also argued that it fell under the business-record exception to the hearsay rule.  The trial court ultimately admitted the report.

Appellate Court Affirms Trial Court’s Judgment

The appeals court noted that a judgment may be reversed based on evidentiary error only if an improper judgment probably resulted from the error.  The appeals court found that the trial court’s judgment did not turn on the business valuation. The trial court had not made a finding regarding intentional unemployment or underemployment. The appeals court found the trial court rejected the mother’s allegation because it did not make a finding on the issue when the mother had requested it.  The appeals court therefore found the judgment did not turn on the valuation report, so even if it had been admitted in error, the father was not harmed.

The appeals court affirmed the denial of the father’s petition to modify child support.

Seeking a Reduction in Child Support? Call McClure Law Group Today

Credibility and strong evidence are important when seeking a child support modification based on a change in income. Whether you are seeking or opposing a modification of child support, a skilled Texas child-support attorney can work with you to identify the best evidence to present your case.  Schedule an appointment with McClure Law Group by calling 214.692.8200.

 



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Parol Evidence in Texas

When two parties enter into a contract, they often heavily negotiate the terms. In some circumstances, the parties may take weeks or months to carefully craft the wording of their contracts. In other circumstances, language gaps may leave much to be desired.

What happens if the parties later disagree about the meaning of certain words or language in the contract? How will a court approach the contract’s interpretation if there is a lawsuit? Enter the parol evidence rule.

The parol evidence rule is a rule applicable to contract disputes, generally prohibiting the admission evidence that is outside the parties’ written contract. Parol evidence may be admissible, however, to show collateral, contemporaneous agreements that are consistent with the underlying agreement or provisions in dispute.

Typically, parties are bound by the terms in their contract. A court will generally interpret those terms according to their plain and common meaning. Courts will generally not allow information or evidence outside of the contract to affect its interpretation.  That is, courts will “stay within the four corners of the document.”

However, if a court determines that a contract is ambiguous, or unclear, it may allow the parties to use parol evidence to help interpret the contract. Parol evidence is extraneous information — or information that is outside the “four corners” of the contract. In a contract dispute, parol evidence usually includes information regarding the parties’ understanding or interpretation of the contract’s terms, such as writings from the parties’ negotiations, like letters or emails.   It may include evidence of the circumstances under which the contract was negotiated and executed.  This information may provide evidence of the parties’ intent.

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