Who owns rights to store oil in an underground salt cavern?

Last June the Corpus Christi Court of Appeals decided that the right to store oil in a salt cavern belongs to the surface owner. In Myers-Woodward, LLC v. Underground Services Markham, LLC, et al., No. 13-20-00172-CV, the court addressed a dispute between Myers-Woodward, which owned the surface estate and a royalty on minerals, including salt, in a tract in which Underground Services owned the salt. Underground Services mined and sold salt by solution-mining from a salt cavern under the land. Myers-Woodward disputed how Underground calculated its royalties on the salt. Underground also asserted that, as owner of the salt, it has the right to use the resulting salt cavern to store hydrocarbons. The court ruled in favor of Underground on its method of determining the royalties owed, but it ruled in favor of Myers-Underwood on the right to use the resulting salt cavern, holding that Myers-Underwood held the storage rights, a part of its rights as owner of the surface estate.

Underground cited Mapco, Inc. v. Carter, 808 S.W.2d 262 (Tex.App.–Beaumont 1991), rev’d on other grounds 817 S.W.2d 686 (Tex 1991), in support of its claim to storage rights. Mapco has often been cited as lending uncertainty to the issue of whether the surface owner owns the pore space under its land. The Beaumont court in Mapco, without citing any authority, held that the mineral owner had storage rights for underground storage facilities. After reviewing other authority, the Corpus Christi court concluded that, contrary to Mapco, “the well-recognized, decisional law states that the mineral estate owner owns the minerals but not the subsurface. … Therefore, we decline to follow Mapco in this case.”

Storage rights have become a more important issue recently with the advent of CO2 sequestration projects in Texas. Although the court did not cite Lightning Oil v. Anadarko, Lightning would seem to support its conclusion as well.

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City of Dallas Owes $33+ Million for Drilling Permit Denials

City of Dallas Owes $33+ Million for Drilling Permit Denials

Co-author Trevor Lawhorn

If you have ever wondered how many ways a cocktail of stupidity*, treachery and feckless government can inflict financial harm on the undeserving, including the citizens the feckless government leaders are supposed to serve, see City of Dallas v. Trinity E. Energy, LLC.

 Facts

In 2008 during the Barnett Shale drilling boom, the City of Dallas issued an RFP to lease several thousand acres owned by the City. Trinity won the bid and agreed with the City that two additional tracts (the “Radio Tower Tract” and the “Gun Club Tract”) would be included in the lease, but only as drill site locations. Trinity paid a $19 million bonus for the lease.

Trinity submitted applications for special use permits (SUPs) from the City for the two tracts and a a private tract. The applications were filed correctly and in accordance with applicable laws. Pulling a Lucy on Trinity’s Charlie Brown, after a lengthy delay the City Plan Commission denied the applications. No other drill sites were feasible for various reasons. Trinity lost its appeal of the SUP denials to the city Council.

The City then amended its gas drilling ordinance to impose restrictions that effectively precluded drilling anywhere on the lease. The lease expired and the interest reverted to the City, never to be drilled.

Procedure

Trinity sued the City on several causes of action. The jury found the City committed statutory fraud and negligent misrepresentation and awarded damages to Trinity.

Over the City’s objection, the trial court submitted a jury question of the fair market value of Trinity’s property before and after denial of the SUPs. The jury found the FMV before denial was $33,639,000 and zero after. The trial court determined that the City committed a regulatory taking by failing to approve the SUPs and awarded Trinity $33,639,000.  The City appealed.

Regulatory taking

The Texas Constitution prohibits the taking, damaging or destroying of private property for public use without adequate compensation.  Inverse condemnation is a cause of action against a governmental defendant to recover the value of property which has been taken in fact by the governmental defendant, even though no formal exercise of the power of eminent domain has been attempted by the taking agency.  To plead a claim for inverse condemnation, the claimant must allege an intentional government act that resulted in the uncompensated taking of his property.

The City’s arguments:

  • There was insufficient evidence to support the finding that the City’s action constituted a regulatory taking. Trinity still had beneficial use of its property because it had other drill sites from which it could access some of the leased acreage. Trinity produced evidence that the best way to maximize the value of its interest was to use the three tracts as drill sites. This was why the sites were included in the lease.
  • Trinity could have drilled on other tracts in Irving and Farmers Branch to access its acreage. The City produced no evidence that those drill sites provided reasonable or economically viable access to Trinity’s minerals. Trinity showed that those sites would require complex drilling and excessively long well bores.
  • Trinity could have sought SUPs for different sites. But there was no evidence that Trinity would have been able to obtain SUPs for other sites that would have permitted Trinity to reasonably and economically develop its interests.

 The court of appeals affirmed the judgment.

 Sufficiency of expert testimony

 The City argued that Trinity’s expert’s testimony on market value was unreliable and therefore the evidence was insufficient to support the jury’s findings. In short, the court found that the expert’s testimony regarding value using the “proposed units” method was sufficient.

 The court also found that the expert’s use of the “comparable sales” method was sufficient. Testimony regarding comparable sales from other counties was appropriate because those sales included acreage with similar thickness as the City acreage. Comparable sales need not be in the immediate vicinity of the subject land, so long as they meet the similarity test.

Finally, the court found that the expert’s “discounted cash-flow” analysis was sufficiently certain. The expert relied on estimated future production, future prices, and estimated costs of production to calculate the net income for the property. He used publicly available price forecasts for his calculations.  While there was conflicting evidence regarding whether Trinity’s interests would be productive, resolving those conflicts was for the jury.

Your musical interlude.

* This is an opinion of course. We can’t certify that the then-City Council members who voted against granting the SUPs have IQ’s of two digits. Maybe they were driven by misinformed and misplaced ideology. Either way, $36 Million would fill a lot of potholes in South Dallas. Can’t blame Mayor Rawlings; he warned them.

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Texas Correction Deed Statute Revisited … Again

Texas Correction Deed Statute Revisited … Again

You might recall this post on Broadway National Bank, Trustee v. Yates Energy Corporation. We now have Yates Energy Corporation et al v. Broadway National Bank, Trustee, the court of appeals’ ruling after remand. Recall the result from the Supreme Court: Execution of the 2013 Amended Correction Mineral Deed by the parties to the original 2005 Mineral Deed and the 2006 Correction Mineral Deed, without joinder of the current owners of the minerals, complied with Texas Property Code §5.029. The question remaining was whether the current owners were bona fide purchases for value without notice. Skipping all sorts of rulings on side issues, the result is that current owner Yates was not a BFP.  Other appellants survived to fight another day.

Yates

Yates et al acquired their interests in the minerals before execution of the 2013 deed. But in 2006 Broadway sent Yates recorded copies of the 2006 deed which recited that the 2005 deed had conveyed interests to John in fee simple by oversight, that the conveyance should have been limited to a life estate, and that specific individuals owned remainder interests.

Yates’ concession that it received the 2006 deed before it acquired its interest satisfied Broadway Bank’s threshold summary judgment burden that Yates had received actual notice of the claims. The burden shifted to Yates to present evidence raising a genuine issue of material fact about whether it had actual notice. Yates argued:

  • Actual notice is a question of fact not of law. The court concluded that was no room for reasonable minds to differ about whether Yates received actual notice.
  • Actual notice would not defeat its BFP defense because the 2006 deed was ineffective and unenforceable and notified Yates only of an alleged mistake that had never been proved or properly corrected. The court declined to hold that an invalid correction instrument is wholly ineffective to impart notice on the subsequent purchaser. The validity of the remainderman’s claimed interest was irrelevant to whether Yates had notice of that claim. Yates did not raise a genuine issue of material fact about whether the deed’s factual recitations were “sufficient to excite the suspicions of a person of ordinary prudence”.
  • Only a correction instrument that complies with §5.029 could defeat a BFP defense. Not so; a purchaser who acquires property with constructive or actual notice of a potential third party claim cannot successfully assert a BFP defense. It didn’t matter that the recording of the 2006 deed was insufficient as constructive notice because it was outside of Yates’ chain of title. Yates received actual notice.
  • John as holder of a life estate could sell the property in fee simple as long as he held the proceeds for the remaindermen. But John did not have unlimited power to dispose of the fee estate and there was no evidence that John held the proceeds for the remainderman.

Broadway conclusively showed that Yates received actual notice of the remainderman’s claim and Yates presented no evidence that raised a genuine issue of material fact. The court affirmed the probate court judgment that Yates was not entitled to protection as a BFP.

Appellants Jalapeno, Curry Glassell, ACG3, Glassell Nonoperating, and EOG.

While Yates could pass no greater interest than it owned, that general rule applies only if the grantee fails to show himself to be a BFP. There was no evidence that Jalapeno and Curry Glassell received actual notice of the facts in the 2006 deed. A subsequent purchaser is only deemed to have constructive notice of recorded documents within its direct chain of title. Jalapeño and Corey Glassell’s chain would not have included any instruments executed by Broadway after it conveyed the property to John. Broadway did not show as a matter of law that Jalapeno or Curry Glassell had constructive notice of the remainderman’s claims.

Broadway and ACG3 and Glassell Nonoperating all moved for summary judgment. The evidence did not conclusively establish either the BFP defenses or that those appellants had actual or constructive knowledge of the remainderman’s claims. Summary judgment for Broadway against ACG3 and Glassell Nonoperating was reversed.

Broadway and EOG filed competing MSJ’s. The evidence did not conclusively establish that EOG had actual knowledge of the 2006 deed when it acquired its interest in the minerals. A fact issue remained on that subject. An affidavit from an EOG landman asserting that EOG acquired John’s interest without notice was not conclusive proof of the fact. Summary judgment against EOG was reversed.

Result: Yates is out.  Its back to the probate court for the others. More likely, it’s on to the Supreme Court for another round.

Your musical interlude. Some things never change.

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Santa Clara Minor's Counsel, GAL, Scam Moves to Alameda , Orange and LA  Counties

          Elise Mitchell Real Estate Bribery Scheme 

Caliornia’s State Auditor issued a report on lawyers appointed for children during their parent’s divorce after complaints from Marin and Sacramento Counties showed lawyers padding thier bills and gouging parents and taxpayers for work that did little for the best interests of children. 

Minor’s counsel appointments are the gateway appointment to scams lawyers run in connection with family law matters. A divorce or cusotdy case where lawyers claim ” high conflict ” between parents will see a judge quickly appoint a favored lawyer as Minor’s Counsel in a case. The appointment provides lawyers with immunituy to issue reports and advocate for children. In  reality the appointments serve as permission to bill and bill families until there is no money left in a community property estate subject to division. 

Parents are forced to go into debt in order to pay lawyers to tell them how to feed, cloth, educate and support thier children. Minor’s counsel are not required to make financial or other disclosures so they often sit in cases where they own businesses with other lawyers, or the judge. 

It was said that the auditor uncovered the scheme in Marin and Sacramento that had been running as designed by Tani Cantil Sakauye  who sat in family court before the Third District Court of Appeal . She was  appointed as the California Supreme Court Judge in 2011, where she not only did nothing to curb the appointments, she moved thorugh local bar associations and clubs in San Jose , Monterey, LA and Orange County to expand them.

​ In Santa Clara she worked directly with former stte bar Chief Trial Counsel Jim Towery and his wife Karyn Sinunu to expand the corrupt practice of profiting from harming kids and robbing families. 

Minor’s Counsel Bring in Funding for Foster Care and CPS 

In Santa Clara, Monerey, LA and Orange County , the small group of lawyers acting as minor’s counsel stand as look out for lawyers involved in real estate schemes, charity fraud and the lucrative practice of private judging. 

Lawyers are vetted by how well they will be team players. Then with a few hours of training, they are appointment ready, If they incite conflict suffienctly, they can remain in a case for a decade until the children age out of the court’s jurisdciton. 

Elise Mitchell is a Black female attorney in Santa Clara, When the court got pressure for the lack of diversity on the Minor’s Counsel pandel, Mitchell was brougth in my Jim Towery and groomed for appointments after she drew in a case where she represented a NFL football player. 

Mitchell then got conencted to the domestic violence scam connected to charties including Women SV, and Judge Cindy Hendrickson who replaced Judge Persky on the bench. Hendrickson and Mitchell’s ties to local Catholic Schools saw them grooming cases to send kids to foster care to earn the county more money and net them kickbacks in real estate and dark money. 

As Mitchell suceeeded she was appointed in cases where lawyers playing for the private judge team would defend her minconduct and criminality., Mitchell was awarded a secret real estate deal in Alameda County where she was charged with expanding the enterprise and rewarded with kickbacks for getting Heather Allan, Jessica Huey , BJ Fadem  Eva Martel or Nicole Ford appointed in a case where she represents a client seeking to use the courts to abuse a former spouse or parent of a child shared in common. 

Accounting records accidentially leaked by Mitchell’s office, run by her children. show such payments from a grandma, Rosalie Black Baker , and others and how those payments  used to bribe judges in Santa Clara and Alameda. The payments also bribe cops, CPS workers and therapists  who will recommend children are placed in foster care for the right pay off price. 

Mitchell has also assured payments to lawyers appointed in LA and Orange County as an escalation of minor’s counsel and cusotdy experts appointments see  judges sending  kids to foster care or charity reunificaiton camps that kick back referral fees to minor’s counsel, district attoney election campaigns and judges through real estate schemes.  

Payments  documented between Mitchell and Orange County mnior’s counsel Cherly Edgar and Tracy Willis show a pattern that reveals  judges who are in on the bribery scam and benefit from real esate kickbacks.

Payments to Orange County Minor’s Counsel Steve Dragna  and Kelly Irwin along with payments to Anaheim police officer Mark Irwin connect the dots of minor’s counsel and Disney lawyers who paid off Judge Cowan in the probate case linked to Walt Disney’s grandson where Judge Cowan victim shamed Bradford Lund for having Down Syndrome after conserving Lund and denying him the ability to manage the money left to him by his grandfather, Walt Disney.  Like Britney Spears Lund has been locked deep inside LA probate court in a horrifically corrupt  conservatorship. The unhappiest place on earth and just down the street from Disneyland where Disney’s wealth was built. 

Minor’s Counsel Appointments Force Parents to  Lucrative Private Judge Cases at JAMS 

Attorney Ed Navarro has been dubbed the children’s assasssin in Los Angeles County. Ed is regualrly appointed in cases with Dennis Wasser , Lisa Meyer , Christopher Melcher and Ron Brot. . Navarro brings in custody experts and therapists associated with Family Bridges and Overcoming Barriers.. He is also linked to psycologists from UCLA and UC Irvine to  discredit the mental health and sobreity of parents and their children. 

Navarro is known for making the pressure so great, and billing hundreds of thousands of dollars to apply pressure to get parents to agree to use a private judge, with no questions asked. 

Los Angeles County District Attonrey George Gascon  has been seen getting payments in crytocurrency and real estate kickbacks to look the other way when middle class and high asset family law litigants use private judging to cover up fraud and child abuse. 

Noise from parents losing cusotdy of their children has grown louder and has been linked to the noise in the Lund and Spears Conservartorships. As a result reporters from the Los Anegeles Times, NBC, Pro Publica and Wall Street Journal have begun asking questions and making records requests about California’s family courts.

​These media requests are said to be reponsible for Chief Justice Tani Cantil Sakauye’s sudden annoucement to resign  as the minor’s counsel and private judge scams in California’s family courts begin to be revealed. 

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Love for LA Dodgers Exposes Sheriff Deputies in Second Bribery Scheme Connected to Appeals Court

Santa Clara Sheriff Sgt. Manual Rey Connects to Ghost Knowledge Account in  Family Court Files 

 When Sargent Rey’s digital footprint connected to the LA Dogers  and former Family Court Public Information Officer Joe Macaluso,  he exposed a Ghost Knowledge Account funded through cryprocurrency transactions  by divorce lawyers, judges, and court appointed witnesses. These accounts reveal Santa Clara Sheriff Department Gangs operating through a” 7:30 Club” in Santa Clara County, and police officer associations throughout the state  running a money laundering and bribery scheme that involves the   rigging divorce and cusotdy cases up through the Court of Appeal. 

It was the linking of Rey and Swenson’s digital footprints that exposed the state wide operation weaving throughout California’s courts and law enforcement agencies in Los Angeles, Orange County, Santa Clara, Los Gatos, Gilroy and Morgan Hill. 

Digital footprints exposing these Santa Clara Sheriff gangs connected to family court cases and the Sixth District Court of Appeal are being scrapped and uploaded to an investigative database. That database is being sold through Bay Area News Group reporters and shareholders in the private companies known as JAMS, ADR Services and Siganture Resolutions. Businesses that conduct 90% of California’s mandatory arbitration and private judging cases. 

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Family Court Debate turns heated with local veterans group and family attorney!

Family Court Debate turns heated with local veterans group and family attorney!

Clark County Nevada

August 22, 2021

 

Veterans In Politics video internet talk show interviewed Louis Schneider a former Prosecutor and owner of Law Offices of Louis Schneider.

Schneider hails from Massachusetts has made Nevada his home.

Schneider has been practicing law for 17 years added that he has chosen family law over criminal law because in family law you can make a real difference, and in criminal law, most of your clients have done something wrong and you get them a soft landing.

Schneider has his own personal demons about the family court in Massachusetts.

Schneider said in family law he will not take a relocation case because it’s heartbreaking to take one parent from the other.

Schneider said in Nevada the judges have to reunite the parents by law, but we all know that’s not what happens.

Schneider said family court judges are the hardest working judges in the county.

Schneider kept repeating the judges look for the “best interest of the children”. The host repeatedly asks what does that means, but couldn’t get a straight answer.

The host brought up the issue that judges abuse their discretion, fail to follow the rule of evidence, and fail to follow Nevada Law and Federal Law. Schneider said he doesn’t see that in the courtroom.

 

DRUG TESTING IN FAMILY COURT

The host wanted to know why the family court judge order litigants to get a drug test on pure allegations without any evidence to support the allegations.

The host pounded on the issue and said according to Nevada Law only a criminal judge can order drug testing of litigants and civil judges has no jurisdiction to make such an order adding that family court judges are civil judges not criminal.

Schneider added that former family court judge Cynthia Dianne Steel wouldn’t order a litigant to take a drug test because it’s a violation of their constitutional rights without probable cause and it’s a criminal court case matter.

Schneider said if you are ordered to take a drug test and you refuse, it’s deemed dirty.

The host said wait a minute if you stand up for your constitutional rights and the law, how is your lack of drug testing deemed dirty? The host said that judges are legislating from the bench. If they want to change the law they need to lobby the legislature for the law to change until then they need to follow the law.

Schneider said it’s the policy of the court. But here is the problem a court policy is not law!

The host brought up the 14th Amendment that gives you equal protection under the law adding if judges want to skirt the law they are no different than anyone else.

Schneider refuses to listen to the law by echoing the safety of children, in other words, you can violate the law if it’s for the safety of the children.

The host once again saying that is not the law, amend the law and stop violating the law. A family court judge cannot order a litigant to take a drug test.

 

JURY TRIAL

The host suggested having a jury trial or a tribunal in family court when dealing with the relocation of children and termination of parental rights.

Schneider said that family court cases are complex and you can’t trust a jury to do that. The host pushed back and said wait a minute, in criminal court a jury decides prison or freedom, life or death, but a jury can’t make a decision on relocation or termination of parental rights, that is totally Ludacris!

Taking someone’s child is a civil death.

The host said one person that has the power to take a child from a parent breeds bias and corruption.

Schneider said a jury doesn’t have the understanding about family court, but yet a jury can decide if you live or die. We still can’t make sense from what Schneider is trying to say he is basically telling us that juries are idiots.

The host brought up the fact that the Constitution said that a parent has a right to parent their children.

The host stated that mediation is mandatory under Nevada State Law. Schneider said he believes mediation is the policy of the court, but yet some judges don’t order litigants to go to mediation before trial.

 

SCHNEIDER GIVES PRAISE TO THE FOLLOWING JUDGES:

Rena Hughes former disgraced judge who was sanctioned by the Nevada Commission on Judicial Discipline and the only sitting judge to lose her election in the primary. Hughes alienated a child from her mother, conducted ex-parte communication, threatened the 11-year-old child with jail, denied court observers in the courtroom, and a tyrant in a black robe.

Bryce Duckworth storms off the bench like a toddler, has predetermined a case without hearing any evidence, doesn’t enforce his own court orders, demonstrates bias in the courtroom, and is a total hypocrite.

Charles Hoskin puts his friends in Hearing Masters job positions by ignoring the votes of the majority judges, destroyed hundreds of elderly Nevadans lives even a documentary entitled The Guardians on Amazon showed how this judge reamed havoc on Nevada residents, he has the most letters for Against in the Nevada Commission on Judicial Selection history when he was attempting to secure the appointment to the Nevada Appellate Court.

Duckworth and Hoskin need to join Hughes at The Abrams Law Firm.

 

ELECTING JUDGES

Schneider said lawyers are paying for judges’ campaigns that breed abuse.

The host stated he has conversation from attorneys that feel threatened if they run against a judge, this is the reason why corrupt judges get a free ride by running unopposed.

The host stated that we have to find a way to remove bad judges by placing into law Remove or Retain. If a judge runs unopposed and Remove receives the most votes the seat becomes vacated, the Nevada Commission on Judicial Selection interviews candidates and sends three names to the Nevada Governor, from the three names Governor picks a person to fill the vacancy, and the following election year the person picked by the Governor runs for retention.

 

PRO SE LITIGANT

Schneider said pro se litigants receive a lot of leeway from judges.

Schneider was giving praise to the Legal Aid Center of Southern Nevada for their pro bono work. The host fired back and said before they take your case you have to be destitute out on the streets and if it’s pro bono work why does the judge order the other side to pay for the opposing parties’ pro bono attorney?

The host suggested the name pro bono needs to be changed to something else because pro bono means free.

 

NEVADA STATE BAR

Schneider said the Nevada State Bar beats up on one-man operations but refuses to go after established law firms.

The host brought up the fact that attorneys walk-off cases without notice abandoning the litigant in the courtroom and the judges allow this to happen. Schneider said that this behavior is against the law.

The host said if we keep turning a deaf ear and a blind eye to the corruption in our courtroom, it becomes normalized.

Schneider said he doesn’t see any corruption in the courtroom and he loves all the judges on the bench.

Schneider said that he takes offense when the host says the family court is corrupt.

 

VETERANS SERVICE-CONNECTED DISABILITY BENEFITS

Schneider said a family court judge cannot order the federal government to garnish your service-connected disability benefits.

The host said that the federal law protects a veteran’s disability benefits but some family court judges believe that they are entitled to take it from them.

 

VEXATIOUS

The host said corruption has many faces, many items make a judge corrupt not just cash payments.

The host wanted to know why litigants are considered to be vexatious when attorneys are just as bad or in some cases worse but yet they are not considered vexatious by the court. In addition, this is a violation of their constitutional right to be heard in a court of law.

Vexatious is used to shut the litigant up!

 

In Closing:

Schneider said all it takes for evil to triumph is for good people to do nothing!

Click on the link below to watch the explosive and informative interview:

Family Court Debate turns heated with local veterans group and family attorney Louis Schneider

www.youtube.com/watch?v=yyC7bLtUJ54

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Texas Custody Schedule Changed Due to School Absences

Originally published by Robert Epstein.

iStock-1252096710A parent’s behavior may affect their rights to access and possession of their child in a Texas custody case.  In a recent case, the trial court’s order provided that the schedule would change if the child had a certain number of unexcused absences or instances of tardiness while in the mother’s care.

According to the appeals court’s opinion, the trial court entered a custom possession order (CPO) as part of a modification order at the end of January 2020.  Pursuant to the CPO, the father had the right to possession of the child from Wednesday morning to Friday morning each week and from Friday morning to Monday morning every other weekend, and the parents alternated holidays and school breaks.  The CPO also provided that the mother’s possession schedule would change to the Standard Possession Schedule if the child had a total of any combination of five unexcused absences and “tardies” from school, as determined by the school, while in the mother’s possession.

Father Moves to Impose Standard Possession Order

The father moved to confirm and clarify the order and requested an injunction in April 2020.  He alleged the child had been tardy five days and absent two days during the fall semester of 2019.  He asked the court to confirm and clarify that the standard possession schedule was in effect and to grant an injunction.

 

He testified the child’s official school record showed the five tardy days and two unexcused absences and that the mother was responsible for getting the child to school on those days.  He presented a business records affidavit of the school’s records custodian dated January 30 and the child’s attendance records.  The records showed the child had four unexcused absences and five tardy days, including the specific days identified by the father.  He also testified that his attorney had attempted to resolve the issue without going to court.

The mother presented a business records affidavit dated June 16.  The attached records did not show the child was tardy on three of the dates on which he was shown tardy in the records introduced by the father.

The child’s kindergarten teacher testified she would rely on the records dated June 16.  She testified children are sometimes sent to the office when they arrive late, and that she and the office personnel can both input tardies.  She also testified that the system she uses and the system used by the office are different and that the two sets of records were from two different systems.

The mother testified she did not know if she was responsible for getting the child to school on three of the dates, which were on the days the parents alternated possession.

The trial court ordered the parties to use the standard possession and access schedule and awarded the father attorney fees.

Mother Appeals Trial Court’s Confirmation of Standard Possession Order

The mother appealed, arguing the trial court abused its discretion because it did not have sufficient evidence to support the order.  She argued the kindergarten teacher was an expert, and the trial court should have relied on the June records because the teacher testified she would rely on them and because they were more recent.

The appeals court noted the trial court had recognized the teacher as an expert in teaching, but not in education administration.  She had testified she was unfamiliar with generation and interpretation of school attendance records.  Although she acknowledged the discrepancy in the records, she could not explain it.  The appeals court further noted the trial court could have found she would rely on the June records because she was familiar with that report and not the one the father submitted.  The trial court had the discretion to discount her testimony.

Appellate Court Finds that Trial Court Properly Considered Conflicting Evidence

The appeals court noted that the trial court could also have found the January attendance records were more reliable than the June attendance records.  The June records contained a summary of absences and tardiness on a single page, which the appeals court noted was blurry and hard to read.  The January records included a “detailed accounting of the daily reports of attendance, absences, and tardies. . .”

Additionally, the court could have believed the father’s testimony that the mother was responsible for getting the child to school on the identified tardy and absent days.  The mother had admitted she was responsible on some of the days and did not remember who was responsible on the other days.

The appeals court found the trial court did not abuse its discretion in deciding to apply the standard schedule because there was substantial and probative evidence supporting it.

The appeals court found there was insufficient evidence supporting the award of attorney fees and remanded the case to the trial court on that issue, but otherwise affirmed the trial court’s order.

Walk into Court Prepared: Call McClure Law Group Today

A significant issue in this case is the conflicting evidence presented by the parties. Although the mother presented a witness to testify about the records, that witness was unable to explain the discrepancy.  If you are experiencing a custody dispute, a skilled Texas custody attorney can work with you to identify the evidence to best support your case.  Please contact McClure Law Group at 214.692.8200 to set up a consultation.

Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.



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What goes into an award of spousal support here in Texas?

Texas appeals court asked to reconsider same-sex divorce case

Originally published by On behalf of Laura Dale.

The battle for equal rights for same-sex couples didn’t end when the Supreme Court quashed the Defense of Marriage Act in 2015. New sorts of battles — many of them related to the way that same-sex couples were treated in the past — were just beginning.

One of those battles is determining what exactly makes a marriage when your marriage isn’t recognized under the laws of your state. Same-sex couples who were in long-term, committed relationships that fall technically short of the definition of marriage only because the parties were of the same gender find themselves facing this question often when such a marriage comes to an end.

Why does the date of a same-sex marriage matter if the couple is splitting? It’s simply because the start and end of a marriage is both a social and a financial contract. The date of a marriage often informs issues like how much spousal support a dependent spouse is due or what assets are really marital assets and subject to division in a divorce.

Now, the Texas Fifth District Court of Appeals is being asked to grant a new divorce trial to a man who split from his partner of 15 years just prior to the Obergefell v. Hodges decision that made same-sex marriage legal throughout the country. A lower court said that no marriage existed because there was no legal same-sex marriage in Texas.

The plaintiff and his attorneys argue that the couple did everything short of legally marry. They say that since they were prevented from doing so by a law that is now considered unconstitutional, that shouldn’t prevent the court from treating their relationship as a marriage.

Cases like this will, unfortunately, continue to come up for a long time into the future. That’s why same-sex couples seeking a divorce are wise to look for attorneys who understand their unique concerns.

Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.



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Can a Texas family court reduce an above guidelines child support obligation in an out-of-state Order?

Can a Texas family court reduce an above guidelines child support obligation in an out-of-state Order?

Originally published by The Law Office of Bryan Fagan, PLLC Blog.

One of the cool parts of being a family law attorney with the Law Office of Bryan Fagan is that there is never a dull moment. There are always unique people with unique circumstances who walk through our door with questions about their lives and their families.

Like Texas, many other states lay out a specific percentage of a non-custodial parent’s income to pay in child support to the custodial parent. Texas has it that for one child, a non-custodial parent should pay 20% of their net monthly resources towards the support of that child. For two children, 25% would go towards child support. The percentages increase by increments of 5% until you reach five or more kids topping out at 40%. In this way, courts have a straightforward mechanism to be put into action for determining child support in most cases. It has become so predictable that the guideline levels of support will be implemented that most attorneys and clients don’t bat an eye when the issue of paying guideline support is raised.

Recently, a potential client presented a scenario where he and his wife were divorced in a state other than Texas, and after the divorce the man’s ex-wife and children had moved to Texas. The state that the children and ex-wife had previously lived in was a higher than average cost of living state and our potential client was ordered to pay child support that is above and beyond the “guideline” levels of support for that state.

Our potential client was thus left with a child support order that obligated him to pay an amount of child support that was above and beyond what is proscribed in the family code of his native state. When a judge decides regarding any subject that is related to a child, he or she must do so based on what is in the best interests of that child. This is a standard that most every state utilizes when applying the law towards the specific circumstances of a child and their family.

Based on the needs of that child, their current circumstances, the ability of their parents to provide the necessities of life and any medical/social/educational needs of that child, an amount of child support will be ordered. Whether the parties to the divorce agreed in mediation to that level of child support or a judge ordered that the amount be paid after a trial, the fact is that the current child support order for this man obligates him to pay an above guidelines level of support.

Where does the Law Office of Bryan Fagan come into play?

Here is where our office becomes relevant to the discussion. This gentleman contacted us about representing him in a child support modification case. His thoughts on the matter center around the reduced level of expenses that his ex-wife is responsible for now that his children live in the Great State of Texas. Having moved from another state whose cost of living is much higher than Texas, our potential client wanted to see what a judge would consider as far as reducing the above guidelines level of child support. Is there a basis in prior court cases to argue that an out of state child support order can be modified to see a reduction in the child support obligation based on circumstances like this?

Today’s blog post from the Law Office of Bryan Fagan will seek to answer that question. As I see it, there are two parts to this discussion that we have to tackle. The first is whether or not a Texas Court has the jurisdiction to modify an out of state child support order. The second is what basis in the law would a family court judge have to reduce the above guidelines level of child support when there has been a change in the cost of living associated with raising children.

When does a Texas court gain the jurisdiction to modify an out of state child support order?

There are a couple of ways that a child support order that comes from a court outside of Texas could be modified, potentially, by a Texas family court. The Texas Family Code states in section 159.613 that if both the child support obligor (parent who pays child support) and the oblige (parent who receives child support payments) and the child all reside in Texas then our state has attained jurisdiction over the case and may modify and/or enforce the out of state order.

Likewise, when only one party (parent) live in Texas, then a modification is possible even if both parents do not reside in Texas. This occurs when the parent bringing the modification cases (in our above scenario, the father) is not a resident of Texas and the responding party (the mother in our example) lives in Texas and is subject to personal jurisdiction in Texas. Here, too, a Texas family court would have jurisdiction over the case.

What have Texas courts stated about subject matter like this?

So now we at least have a basic understanding of how a Texas court gains the ability to make rulings regarding an order issued by an out of state court. The jurisdiction to do so is critically important. You may be in a situation like our potential client- having seen a change in circumstances that have materially affected your family since the issuing of that order. Thus, some portion of your prior order is no longer suitable for you or your children. However, if you cannot successfully argue to a Texas court that jurisdiction is proper in Texas you will not be able to make an argument about any of the facts and circumstances that justify a modification.

A fairly recent Texas state appellate court decision would further assist us in our discussion. In re Dennis J. Martinez, 450 S.W.3d 157 (2014) contains within it a good discussion of the relevant law regarding how and when an out of state court can lose jurisdiction over a case and its parties.

This court notes that in section 159.205 of the Texas Family Code, our state law provides only two ways in which a court may lose jurisdiction over a case and its parties about a family law matter. First, the obligor, the oblige, and the child would have to all move out of the state that issued the order (as we discussed previously). Another and less likely scenario would be that all individuals file written consents in Texas allowing a Texas court to assume jurisdiction and modify the other state’s order.

As noted above, the circumstances under which a court may modify a support decree from another state are found in section 159.611 of the Family Code. SeeTEX. FAM.CODE ANN. § 159.611. A modification is permitted by the non-rendering state under the circumstances outlined in section 159.611 because under such circumstances the rendering state no longer has a sufficient interest in the modification of its order.

If you are facing a situation like a gentleman who contacted us about potentially representing him in a child support modification case here in Texas, you need to consider whether or not a Texas court will even be able to hear your arguments and potentially grant you whatever relief you are requesting. Keep in mind that if you cannot clear this jurisdictional hurdle you won’t even get the opportunity to submit any of your arguments to the court as to why your child support order needs to be modified.

Can a Texas court grant a reduction in the child support obligation of a parent under an out of state order?

Here is the question that our potential client is interested in knowing the answer to. He wanted to find out what facts and circumstances would need to be in play that could lead to a court in Texas reducing his above guidelines level of child support that he is currently obligated to pay.

A modification of a child support order is warranted when the petitioning party (the person asking for the modification) can provide evidence showing a material and substantial change in the circumstances of one of the parties to the order or a child of the order. As the court in Tucker v. Tucker, 908 S.W.2d 530 (1995), notes, there is an inherent fact-finding nature of child support issues and the cases that are made up of those issues.

The high court in Texas was stating what every family law attorney worth his salt could tell you: that family law cases are extremely fact-specific. If you would like to modify a child support order then you will need to present facts clearly and concisely to the court. This means that your initial petition to the court and in your oral arguments inside of a modification hearing need to display the requisite level of material and substantial change needed to grant the modification.

Cost in living expenses has been a factor alleged by prior parties seeking child support modifications

Part of the analysis that your court will look at when considering whether or not to grant a child support modification is the expenses incurred by the custodial parent who is raising the children on a day to day basis. Remember- our potential client would like to make an argument that because his ex-wife and kids now live in Texas, with its lower cost of living than their native state, is no longer in need of a child support payment that is above the guidelines of his home state.

Costs associated with special education for your child, school tuition and things of this nature are relevant to our discussion. A court would look to the expenses of your ex-spouse to determine whether there is sufficient evidence in the record to compare the expenses of her and your children at the time that the original child support order was issued and what the expenses are now. This means that you will need to do some digging to produce this kind of evidence, especially if the child support order is from a decade ago.

In the case, In the Interest of C.C.J. and C.M.J, Minor Children, 244 S.W.3d 911 (2008), the court went over a good analysis when that has to be shown to a court to justify a modification:

To determine whether there has been a material and substantial change in circumstances, the trial court must examine and compare the circumstances of the parents and any minor children at the time of the initial order with the circumstances existing at the time modification is sought. London v. London, 192 S.W.3d at 15. 

In that case, the parent who was attempting to modify the prior court order was the mother. She was arguing for an increase in the level of child support based on a material and substantial change in the circumstances of her and her children. Her expenses, she attempted to argue, had increased dramatically in recent years, while the income of her ex-husband had increased. The evidence she presented, the court determined was insufficient to justify an increase in child support. Here is what the appellate court determined:

Here, without both historical and current evidence of the financial circumstances of Mother and the children, the trial court had nothing to compare. See id. Because there is no evidence in the record of the financial circumstances of Mother or the children at the time of the entry of the divorce decree, we conclude the trial court’s finding of “a substantial and material change of circumstances since the rendition of the prior order” is not supported by the record. Accordingly, we conclude the trial court abused its discretion in increasing Father’s monthly child support obligation.

What does the Texas Family Code have to say about a decrease in the needs of a child about child support?

The Texas Family Code states that an increase in the needs, the standard of living, or lifestyle of the oblige since the rendition of the existing order does not warrant an increase in the obligor’s child support obligation. Texas Family Code section 156.405. I would also argue that the opposite could also be potentially held by a Texas court. Specifically that an argument that a decrease in the needs, the standard of living or lifestyle of the custodial parent is not necessarily a reason in and of itself to modify a child support obligation.

A Texas case that is important for our purposes is In the Interest of J.A.H. and M.K.H, Children, 311 S.W.3d 536 (2009). Here, as in the prior case we discussed, a mother was attempting to argue that an increase in her expenses due to a change in the cost of living after a move justified an increase in the child support obligation of her ex-husband. What the court found, in this case, was that all of the evidence submitted by the mother tended to show that there had been a change in her circumstances rather than a change in a substantial change in the circumstances of her children.

The court argued that simply showing a change in lifestyle and not a material or substantial change in circumstances of the children does not in and of itself justify a modification of the child support order. If you attempt to argue that because your ex-spouse’s mortgage payment has decreased or that their utility bills are lower and that justifies a decrease in the child support obligation, then this case should give you pause.

How are the needs of your child taken into account by a court?

Specifically, to justify an award of child support above the guidelines outlined in the Texas Family Code, your ex-spouse must show that there would be needs of your child that would be unmet but for the higher than guidelines level of support. Rodriguez v. Rodriguez, 860 S.W.2d 414, 417 (Tex. 1993). Note that the needs of your child are not the bare necessities of life, either. Each court will decide as to what the needs of your child are. Like we mentioned earlier in this blog post, the facts of your case will guide the judge in large part.

The bottom line: if you wish to modify a child support order come with plenty of evidence

Whether yours is an out of state child support order or an order that originates in Texas, you need to come to court with plenty of evidence that justifies the modification request A family court judge has the authority to reduce a level of child support that is currently set above the guidelines of your home state, but to earn that decrease in the support obligation you have to submit sufficient proof showing a change in the conditions of your spouse, your children or you. A material and substantial change regarding the cost of living is a trickier argument to make than one based on a change in your income or an increase (or decrease) in the educational or medical needs of your child.

Please consider contacting the Law Office of Bryan Fagan if you have questions about today’s material. Our licensed family law attorneys offer free of charge consultations six days a week where we can answer your questions in a comfortable and pressure free environment.

Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.



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