The Subpoena Power

By | Child Support, Community Property, Custody and Conservatorship, Divorce, Just and Right, Marital Property Division, Separate Property, Trial Issues

There are two types of subpoenas that can command two types of actions. Trial subpoenas command appearance at a trial or hearing and discovery subpoenas command appearance to give testimony for the purpose of discovery of evidence. Either way, the subpoena can also ask for production of documents or tangible items for trial, a hearing or discovery.

The subpoena power can reach beyond the parties in a lawsuit. It can also compel non-parties or entities to comply. Although there are some limits, generally speaking, someone can be compelled to testify or produce documents in a case that they are not directly involved in. For example, Denise Richards could have been subpoenaed in Charlie Sheen’s criminal assault case for his alleged attack on Brooke Mueller. In his suit against Kim Kardashian, Chris Humphries (her 72 day husband) subpoenaed Kanye West (her boyfriend) to appear and give testimony at a deposition, purportedly to show she didn’t intend to marry Chris for legitimate reasons.

Oftentimes, the only way to obtain admissible evidence in a case and prepare for trial is to seek information from third parties using a subpoena. Bank records, computer files, corporate books and records, report cards, medical records, phone records and so forth are good examples. Note: Facebook and other social media sites are protected by federal law from the subpoena power.

Failing to comply with a subpoena could result in contempt charges. The statute allows for a court to assess fines or require the non-appearing party to be confined. Texas Rule of Civil Procedure 176.8.

Court Refuses to Admit Facebook Pictures

By | Custody and Conservatorship, Divorce, Trial Issues

A Webb County District Court refused to admit a mother’s provocative Facebook pictures in a termination case. The County Attorney attempted to introduce Facebook pictures and posts by asking the mother if she in fact had posted provocative pictures of herself. When the mother said no, the attorney sought to use the pictures to show the jury that the mother was a liar and to impeach her character. I’m sure the shock factor of a mother of six posing for nasty pictures for the public to see was only a small bonus.

The mother, whose Facebook pictures and comments were too inappropriate for repeating here, argued that they should be excluded for two reasons. One, because she recanted her testimony that she hadn’t posted provocative pictures, and two, because they were more prejudicial that probative.

The Appellate Court agreed with her first point because the record showed the jury already knew she was liar and the introduction of more evidence that she lied about whether or not she posts provocative pictures of Facebook would be redundant. The Court then cited the proposition that exclusion of evidence that is cumulative is harmless.

I’m not saying there is much of a lesson in this case except that there are situations where Facebook pictures are inadmissible. The mother in this case was accused of many disturbing acts including trying to set her house on fire with her children in it. I don’t think the Facebook pictures were the center of the County’s case.

Pre-Nup Agreement Invalidated in Dallas as Involuntary

By | Community Property, Divorce, Just and Right, Marital Property Division, Pre-Marital Agreements, Separate Property

The 5th District Court of Appeals in Dallas upheld a trial court’s finding that a pre-marital agreement was invalid and awarded the wife $1.39 million on July 3, 2012. Moore v. Moore, 2012 Tex. App. LEXIS 5290 (Tex. App. Dallas July 3, 2012).

There are many lessons to be learned from the Moore case. For example, don’t say you need a pre-nup because you have a lot of “loans, liens and lawsuits” as Mr. Moore did in this case when in reality he was a millionaire. Also, make sure both parties are represented by good counsel.

In Texas, a pre-nup is not enforceable if the party against whom enforcement is requested proves that he or she did not sign the agreement voluntarily. Tex. Fam. Code ยง 4.006(a)(1).

The following 4 factors are considered when determining voluntariness in entering a pre-nup: 1. whether a party has had the advice of counsel; 2. misrepresentations made in procuring the agreement; 3. the amount of information provided; and, 4. whether information has been withheld. The court may also hear evidence as to fraud.

That being said, claiming you didn’t know what you were signing when you signed it isn’t enough to invalidate a contract in Texas. In fact, Texas law presumes that a party to a contract knows what he signed, the meaning of what he signed and can comprehend its legal effect. There are a number of exceptions to this principle as demonstrated in the Moore case. Each case is different and there are no bright line rules.

The evidence uncovered at the trial court level in Moore showed the wife signed the pre-nup a few hours before the wedding, that she had been incorrectly informed that it was reviewed and approved by her attorney, that it did not disclose husband’s assets and that it had generally been withheld from her until the morning of her walk down the isle. All of these facts influenced the court in finding that the wife did not sign the pre-nup voluntarily.

According to the Dallas Court, “voluntary” means “an action that is taken intentionally or by the free exercise of one’s will.” While the wife freely signed her name to the pre-nup, it wasn’t enough to make the agreement enforceable in this case with these specific facts. Therefore, the pre-nup was invalidated and the Moore assets were divided up according to “just and right” principles. For more information on “Just and Right“, please follow the link.

5 Factors Affecting Child Support

By | Child Support, Custody and Conservatorship, Divorce

Child support in Texas is generally calculated by applying a percentage to your net resources. For information on calculating child support, see my blog, Child Support Guidelines in Texas. The following five factors may further affect the calculation:

1. The child’s medical needs;
2. A party’s responsibility for other children as managing or possessory conservator;
3. Each party’s period of possession of or access to the child;
4. Travel costs for exercising possession of and access to the child;
5. Necessary child care expenses to stay employed.

These are merely factors to consider. Every case and court is different.