Introduction

In the fall of 1998, the Dallas Bar Association ADR Section decided to present a Family Law Program designed to improve the negotiation skills of family law professionals. Leota Alexander, Suzanne Duvall, George McKearin, and Tom Noble met and, after a series of meetings, agreed that one of the primary obstacles to settlement of family law disputes is inadequate case evaluation due, in part, to unfamiliarity with the local policies and inclinations of trial judges. Thus, they decided to poll the judges in Dallas and contiguous counties about their policies concerning common family law issues.

This resulted in questions one through twelve and the responses set out below. These questions were then disseminated to the courts in Dallas, Collin, Rockwall, Kaufman, Tarrant and Denton Counties.

The first questionnaire addressed the following issues:

1. Do judges "punish" spouses for adultery? If so, to what extent?

2. How much do judges award for disparity of earning ability ?

3. How do factors like adultery and disparity of earning ability affect the division of larger estates ?

4. How closely do judges follow the child support guidelines and why do they vary from them?

5. How often and why do judges award a parent possession of a child in excess of the Standard Possession Order ?

6. Is there a bias against equal periods of possession ?

7. What factors are most important to judges in "relocation" cases ?

8. To what extent are judges awarding statutory alimony ?

9. How do judges deal with the problem of whether to evaluate the marital residence by offsetting a percentage for closing costs and commissions (even though neither party may be interested in selling the house at the time of divorce)?

10. How often and why do judges assess attorneys' fees in a divorce case?

The presenters received responses from all of the Dallas County Family Law Courts, two District Courts from Collin County, and two from Tarrant County. They first presented the results, along with hypothetical case studies, in a mediation training forum in January, 1999.

Judge Fowler, a fine mediator in his own right, sent the same questions to several other judges around the state and used the results in his paper presented at the State Bar Advanced Family Law Seminar in August, 1999.

After receiving a positive response from the family law bar, the presenters sent a second set of questions to local judges in December, 1999. With this set of questions, the presenters polled judges concerning their policies on the following common problems arising in family law cases:

1. Periods of possession for children under age 3 .

2. Restricting the location of a child's primary residence in light of recent amendments to the Texas Family Code.

3. Retroactive child support in parentage cases.

4. Calculating child support in two-income families .

5. Calculating child support in "split custody" cases .

The presenters suggest that family lawyers refer to this paper when considering how to advise their clients on issues similar to those that the research addresses. Mediators may find it helpful to keep a copy of the paper in their "toolboxes" to educate lawyers and litigants and, thus, avoid impasses in cases where lawyers or parties take unrealistic positions in light of current court policies.

Interested parties can also find a copy of this paper posted at http://www.tnoble.com/.

The Importance of Evaluation

by
Thomas Noble

Why Cases Do Not Settle

"Mediation didn't work". We have all heard that. From my admittedly biased perspective, mediation always "works". Even if the parties do not leave the scheduled mediation session with a settlement, they always learn something , whether it is about the facts of the case or about one another's bargaining position. Every case deserves a reasonable amount of energy devoted to settlement. Mediation offers that opportunity.

But still, no matter how we spin it, the fact remains that some people leave mediation believing that they have wasted their time and money. And, some mediators experience frustration when cases do not settle, not understanding why. How do we prevent that? We prevent it by identifying the "high risk" cases, by dealing with the parties' expectations accordingly, by refusing to waste time on cases unlikely to settle, by bolstering weaknesses where we can, and by improving the quality of mediation services . Common problems ("high risk" cases) include the following:

1. Mediation occurs "too early" or "too late" in the litigation process.

2. One or both parties are pro se.

3. Parties have lawyers, but the lawyers are working "pro bono" or letting the parties "run a tab".

4. Lawyers are inexperienced in handling family law cases.

5. Lawyers and/or parties have not evaluated their case prior to mediation.

The "too early - too late" problem is one of timing. Mediation occurs "too early" when the parties come to mediation without knowing all that they need to know to settle the case. They do not know what retirement accounts they own, what the balances are, or whether they have the right to borrow from them, for example. Or, they have a dispute over the value of their home, and neither party has acquired an appraisal. When mediation occurs "too early", there is an easy and obvious solution: recess the mediation while the parties do their homework, and reconvene the mediation if necessary.

The mediator has a harder problem if mediation occurs "too late". This problem arises when the parties have been to court numerous times, have spent significant sums of money, have reviewed all of the expert reports, and are entrenched in their positions. Unlike the case in which mediation occurs too early in the process and in which the mediator has an opportunity to help the parties get "on track" towards a negotiated settlement early in the litigation process, the mediator has few options in handling a case in which mediation occurs a few days before a jury trial. Until judges order parties to mediate early in the process, there will be little mediators can do about this.

Mediators are also challenged by cases in which the lawyers do not require that the parties pay for legal services. While many of these lawyers have good intentions, if the parties can "fight for free", many will. If the mediator determines that the parties are not making a good faith effort to settle the case because they can fight for free, there is little a mediator can do. Options include: (a) encourage the lawyers to charge something, even if it is a token amount, so that the parties have some investment in the process; or (b) refuse to waste time on the case.

Unlike cases in which the parties come to mediation after they are heavily invested in the adversarial process and those in which the parties are not paying for services, mediators can have substantial influence in cases involving inexperienced lawyers and lawyers or parties who have not evaluated their case or who do not know how to evaluate their case.

Why Evaluate?

Why is evaluating a case so important? Here are a few reasons:

• To avoid malpractice. What happens to the lawyer who settles the custody case and agrees to no residence restriction when the clear policy of the court in which the case is pending favors such restriction? What about the lawyer who "allows" his client to settle a property division without evaluating the impact of reimbursement claims?
  
  
• That's what you are getting paid to do . Isn't this what the public typically expects from a family law professional? If not, the professional should consider stating so in writing.
  
  
• Mis-evaluation or non-evaluation is inefficient . Lawyers and parties can flounder around for months with a case that may be easily resolved simply because they do not take the time to focus on the issues.
  
  
• Family law litigation requires that the parties make decisions; they usually make those decisions by considering their BATNA (best alternative to negotiated settlement) . If you are not familiar with the concept of "BATNA", now is the time. This is a fundamental concept in current negotiation theory. ¹ The only way to determine or develop a BATNA is through case evaluation.
  
  
• Mediators can perform a valuable service by simply helping people evaluate their cases . The presenters have helped people settle hundreds of family law disputes simply by helping them evaluate their cases. It is amazing how many cases can be settled through evaluation and nothing more.

"Evaluating" Cases v. "Evaluative Mediation"

Let's be clear about what we mean by "evaluating" family law cases within the context of family law mediation. For many years there has been a controversy among mediators concerning the propriety of "evaluative mediation". Unlike mediators who believe that the power of mediation comes from empowering the parties as decision makers, mediators who practice evaluative mediation evaluate the case and tell the parties and their attorneys what they think. That can be of value in certain cases, but, many mediators believe that evaluative mediation is not really mediation; it is, rather, non-binding arbitration. Mediation is a process whereby the parties are empowered to make their own decisions and come to their own conclusions about the strengths and weaknesses of their cases. While there is nothing wrong with mediators assisting the parties and their attorneys with evaluating the case, the distinction lies in who does the evaluation and how it is done.

This is not a paper advocating evaluative mediation. It is simply an attempt to assist family law professionals (including mediators) in developing better skills at assisting parties in evaluating their case.

How do we evaluate a family law dispute?

Evaluation is part-art and part-science, both intuitive and analytical. There is no one particular method for evaluating every case. But, proper evaluation considers: (a) the facts; (b) the applicable law, including local policies; (c) the people involved; and (d) the nature of the conflict.

This paper addresses each of these areas, providing family law professionals with tools to improve their evaluative skills without proposing that there is one certain formula to apply to every case.

Dale Carnegie, author of the all-time best seller, How to Win Friends and Influence People, promoted one of the simplest methods for evaluating and solving all problems, as follows:

• What is the problem?
  
  
• What is the cause of the problem?
  
  
• What are all of the possible solutions to the problem?
  
  
• What solution do you suggest?

My favorite evaluation model is what I call the "AGICOP" method ² . Here it is:

The AGICOP Method of Evaluating Disputes

• AG: Agreement?

Do the parties agree to anything? If so, what? Emphasize the agreements.

• I: Issues?

What are the issues? Do not assume that the issues will remain static. Continue to ask the parties to define the issues. And, remember, issues lead to sub-issues, and so on.

• C: Concerns?

What are each party's concerns about each issue?

• O: Options?

What are the options available to resolve each issue? How realistic is each option? How does each option address the concerns of the parties?

• P: Proposals?

What is each party's proposal for resolving each issue? What is the mediator's proposal?

Conclusion

The process of mediation is maturing. There are now a number of experienced family law mediators in our locale. To a large extent, we have solved the quantity problem. The challenge for the future is to improve the quality of services. This is a challenge for advocates as well as mediators. One way of doing so is to improve our abilities to evaluate cases and, by so doing, get to the heart of the problem as quickly and efficientlyas possible. The remainder of this paper is designed to enhance your evaluative skills for these purposes.

Evaluating Conflict
by
Suzanne Mann Duvall

Conflict is everywhere we look in society. It cannot be avoided. Contrary to popular perception, conflict can be a force for good as well as for ill. It is most often conflict, not apathy, that is the root of positive change.

The most intimate conflicts occur in interpersonal relationships, especially between divorcing spouses. Unbridled and unchecked, this form of conflict can lead to long-term damage, not only between the parties as individuals, but also between the parties as they continually attempt to cooperate in their roles as parents of their children.

The emergence and acceptance of the use of mediation in the practice of family law is viewed by courts, practitioners and parties as the most effective means of containing the destructive elements of conflict to produce a more satisfactory outcome.

WHAT IS CONFLICT?

According to Christopher W. Moore, Ph.D., internationally recognized as the leading theorist in the field of conflict resolution, conflict is a form of competitive behavior between people or groups. It occurs when two or more people compete over actual or perceived incompatible goals or limited resources. In family law, for example, a custody fight in which each parent is demanding to be sole managing conservator of a child or children of the marriage is an instance of two people, the parents, engaged in conflict with incompatible goals. If this conflict proceeds to trial, one parent would seek to be declared the winner, leaving the other parent to be the real or perceived "loser". The division of the marital estate is an example of a conflict involving limited resources (the whole divided by two does not equal two wholes). The transformation of destructive conflict into a dispute with a positive outcome through mediation requires the exploration of the major causes of conflict.

WHAT CAUSES CONFLICT?

According to Christopher Moore's Circle of Conflict, the five central causes of conflict are:

• Problems with people's relationships
• Problems with data
• Perceived or actual incompatible interests
• Structural forces
• Differing values

Moore further defines these causes of conflict as follows: (Christopher W. Moore, Ph.D., CDR Associates training publication 1996):

Relationship Conflicts occur because of the presence of strong negative emotions, misperceptions or stereotypes, poor or miscommunication, or repetitive negative behaviors. These problems often result in what has been called unrealistic or unnecessary conflicts since they may occur even when objective conditions for a conflict, such as limited resources or mutually exclusive goals, are not present. Relationship problems often fuel disputes and lead to an unnecessary escalating spiral of destructive conflict.

Data Conflicts occur when people lack information necessary to make wise decisions, are misinformed, disagree over what data is relevant, interpret information differently, or have competing assessment procedures. Some data conflict may be unnecessary since it is caused by poor communication between the people in conflict. Other data conflicts may be genuine because the information and/or procedures used by the people to collect data are not compatible.

Interest Conflicts are caused by competition over perceived or actual incompatible needs. Conflicts of interest result when one or more parties believes that in order to satisfy his or her needs, those of an opponent must be sacrificed.

Structural Conflicts are caused by oppressive patterns of human relationships. These patterns are often shaped by forces external to the people in dispute. Limited physical resources or authority, geographic constraints (distance or proximity), time (too little or too much), and organizational structures, often promote conflict behavior.

Value Conflicts are caused by perceived or actual incompatible belief systems. Values are beliefs that people use to give meaning to their lives. Values explain what is good or bad, right or wrong, just or unjust. Differing values need not cause conflict. People can live together in harmony with quite different value systems. Value disputes arise only when people attempt to force one set of values on others or lay claims to exclusive value systems which do not allow for divergent beliefs.

THE CIRCLE OF CONFLICT AND CONFLICT MAPPING

The Circle of Conflict is a useful analytical tool for examining disputes and uncovering the root cause of conflict behavior. By examining a conflict and evaluating it according to the five categories - relationship, data, interest, structure, and value - we can begin to determine what causes the dispute, identify what sector is primary, and assess whether the cause is a genuine incompatibility of interests or perceptual problems of the involved parties. These insights can assist the parties, the practitioners, and the mediator in designing a resolution strategy that will have a higher probability of success than an approach which is exclusively trial-and-error.

Evaluating Disputants
by
George S. McKearin

The thrust of my paper will be evaluating disputants from the perspective of the mediator. The same principals, however, can be incorporated by the attorney who is evaluating his client, the other attorney and the other attorney's client either in the mediation, or simply in a face-to-face negotiation.

We must remember that we are typically dealing with a very emotionally charged atmosphere. The parties are in pain. At some time they entered into vows, they made promises such as to love, honor and even "obey", till death do us part. We are part of a process in bringing about the termination of one of the most complex relationships we can enter into as human beings.

I am going to first give you an objective way of evaluating the parties. I suggest to you a simple checklist that may assist you in evaluating the people you are dealing with. In theory, the more you can learn about the other parties in the process, the greater likelihood you will be able to exploit this knowledge to your advantage.

What we are trying to do is determine behavioral styles through DISC, the acronym for Dominance, Influence, Steadiness and Compliance. This presentation is an abbreviated version of a seminar that I attended that was conducted by a fellow Dallas Bar member, K. Mark Pistorius. Mark is also a CPA and a trained behavioral analyst who works with the Moritz Consulting Group.

In theory, if you can determine the type of person you are dealing with, you are more likely to make the right moves to lead that person in the right direction.

To implement this system you must first try to determine whether the individual you are listening to and observing is people or task oriented. Once you have determined that, then try to determine whether they are extroverted or introverted. This will lead you to a DISC category. Then, you need to check the various plot points to see where you put them on the graph.

Individuals who fall under the dominance or compliance categories tend to have strengths in dealing with task oriented skills. The dominant person tends to tackle the problem head on and expects results quickly. The compliant individual, on the other hand, is more into following procedures and gathering data.

"Influence" and "steadiness" people tend to have stronger people skills. "Influence people" tend to be people oriented and focused on the experiences of the parties. "Steadiness people", on the other hand, strive to understand through listening and believe in a deliberate pace in resolving problems.

In general, the higher the D (dominance) category person you are dealing with, the more you may need to challenge this person in the mediation process. The higher the I (influence) person you are dealing with, the more you may need to verbalize with this individual. The higher the S (steadiness) person, the more accommodating you may need to be to their thoughts and feelings. The higher the C (compliance) person, the more you may need to lead so that they will follow. The Determining Behavioral Style graph gives you a document you can run copies on and actually plot your analysis of an individual. The Factor Intensity Analysis graph gives you various characteristics, above and below the line, in the four different categories. Understanding these may help you more accurately do your plotting.

To give you some examples of people you may recognize and where they would be on a DISC scale, Rush Limbaugh is a high D person. About 18% of the population tend to be D's.

Robin Williams is probably a high I person. About 29% of the population tend to be I's. Barbara Bush is a good example of a high S. About 41% of the population are S's. Al Gore is probably a high C. About 12% of the population tend to be C's.

I have suggested an objective way of evaluating the parties. This sounds good, but I have not yet developed an ability to run this sort of analysis in an active and ongoing mediation. Certainly, if you had an opportunity to interview people ahead of time, perhaps have the opening session and then recess for another day, you could go back and think through this. However, you rarely will have that opportunity, so you will most likely make a subjective evaluation of the parties and go forward in the process.

There are, however, certain principals you can follow which may make your subjective evaluation more accurate.

First and foremost, you must recognize that the mediation process is a deliberate one which will take time to unfold. Attorneys tend to want to rush the mediation, however, it is the mediator's job to encourage the parties and the attorneys to calmly and deliberately go through the mediation process. Patience is a virtue.

The mediator must generate trust in the mediation process. The parties have to come to trust the mediator to help them achieve settlement. In order to do this, the mediator must evaluate attorneys and parties and decide how he will deal with them individually as the mediation process unfolds.

I personally believe that it is vital when you are handling a family law mediation, where SAPCR issues are involved, for there to be an opening session, where the mediator addresses the parties and their attorneys and where the attorneys and parties exchange opening statements.

I believe that the mediator's opening statement is an important opportunity for the mediator to try to set the tone for what hopefully will be a reasoned, deliberate and ultimately successful mediation.

The opening statements provide the mediator his first and perhaps best opportunity to begin evaluating the parties. This opening session also gives the respective attorneys an opportunity to evaluate not only their attorney opponent but also the other party.

One of the most difficult principles for mediators and attorneys involved in negotiations to grasp, is that you learn more by listening then you do by talking. Attorneys are trained to be advocates for their clients. They can at times get so caught up in their advocating that they fail to listen to what the other side is saying. It is vital in a negotiation and/or mediation to listen and comprehend what the other side is, in fact, trying to communicate to you.

I want an opening session where not only I but both parties and their attorneys communicate. I like to observe the interaction between the parties as they are talking to me and to one another. You will find at times that not everything will be laid on the table in this opening session. Sometimes parties simply find it difficult communicating in the presence of one another.

Let's assume that you have mastered the art of listening. How do you, as mediator or as the attorney, decide what tactics will best work in the mediation process? What criteria do you use to evaluate the other parties in the process? What characteristics do you look for to help you intelligently decide how best to proceed in dealing with the arguments, positions, offers and counteroffers?

Whether you are the mediator or the attorney, there are certain qualities that will help you be more effective in obtaining resolution. If you can spot these qualities in others, you may gain some insight on how to deal with the individuals in the negotiation process. These are not necessarily the same qualities which may make you a tremendous courtroom advocate for your client, but, if you approach the family law field from the premise that the best thing that you can do for your client is to obtain a fair agreement with the least amount of blood-letting, then the following principles are as relevant to the attorney advocate as they are to the mediator.

The characteristics that I am talking about are honesty, tolerance, open-mindedness, gentleness, a sense of humor, defenselessness, generosity, humility, faithfulness and patience. Steve Brutsche defined these as the core qualities of a mediator in an article published in the newsletter of the Association of Attorneys and Mediators in January of 1990. These "core qualities" are as true today as they were then.

If you can assess the presence or lack of these qualities in the attorneys and parties involved, this assessment will help you decide on how to deal with them.

I will suggest another factor to be considered, the knowledge level of the attorneys you are dealing with. At an extreme, I mediated a case where one attorney was not aware of the net income tables and the percentage allocations in the family code. While a mediator is not supposed to give advice, I felt there was little point in wasting time arguing about the child support amount. I made the decision at the first opportunity to "educate" that particular attorney, and resolution on the child support issue arrived very quickly.

I personally cannot push, pull or encourage an attorney to come to an agreement which I know would be committing legal malpractice. While you may be walking a delicate line, I have never failed to have an attorney appreciate the fact that he/she was going down a pathway which could be disastrous.

You are going to have a fairly short time in the opening session to make snap judgments on how to proceed with the individuals involved. It is almost always the case that you are meeting the parties for the first time. It may also be the case that you are meeting the attorneys for the first time. It is unfortunately too often the case that the attorneys may be meeting one another for the first time, and even more so that this is the first opportunity that they will have to evaluate the other party face-to-face. Listen carefully, look at the speaker, pay attention to facial expressions, gestures, and voice inflections.

Remember as the mediator that your responsibility is to keep the parties moving towards resolution. The basic characteristic that I think the mediator needs to have is the attitude that he will never give up trying to help the parties resolve their dispute.

The Importance of Defining Issues, Evaluating Factual Disputes and Legal Disputes
by
Leota Alexander

In order for the parties to settle their dispute, the actual issues must be identified. It is extremely helpful for the mediator to receive an outline of the issues from each party prior to the mediation. In reviewing this outline, the mediator can identify issues that probably will resolve quickly and issues that may take significant periods of time.

Every mediation has its own pace. Some issues willbe resolved within the first hour or two and others will take all day (or longer). In a comprehensive divorce mediation there may be multiple issues and sub-issues that will need to be identified, discussed, negotiated and ultimately resolved by agreement.

It generally is advisable to take simple issues first for several reasons. If the parties can initially reach an agreement on some issues they have a sense of accomplishment and a reasonable expectation that progress will be made on the more difficult issues. Also, the parties will have confidence in the mediator's ability to help them resolve their disagreements.

It is a good idea to establish an agenda or listing of the issues at the beginning of mediation. An example of such a listing could include the following:

• Immediate issues concerning sharing time with the children.
  
  
• Immediate issues concerning support, payment of current debts, and management of assets.
  
  
• Personal conduct issues such as agreements regarding relationships with third parties with respect to the children.
  
  
• Decision making issues involving the children concerning rights, duties and responsibilities.
  
  
• Ultimate time-sharing of the children.
  
  
• Allocating assets and debts.
  
  
• Permanent child support.
  
  
• Spousal support.
  
  
• Miscellaneous issues such as taxes, insurance, QDRO's, etc.

Custody or primary possession of the children often is the most difficult issue to resolve. The willing acceptance of both parents to resolve this issue by agreement is essential. This issue may have many sub-issues such as physical or emotional safety of the children while in possession of a parent, discipline of the children, education, how to diminish the anger of the parents toward each other, and communications between a parent and the children.

The issue of child support may be used by a party as a bargaining tool for obtaining more frequent visitation or in resolving a dispute regarding custody. Resolution of a child support issue should begin with factual determinations of the parties' income and the real costs of supporting the children. After determining income and costs there may be a legal issue regarding the presumed use of the child support guidelines. One of the parties may contend that there should be a variation from the guidelines.

The issue of periods of possession with the children is an issue that may continue for many years despite the parties' present agreement. The most carefully thought-out resolution may be unworkable at a later date due to factors such as remarriage, new employment, etc. This possibility of future revisions should be explained to both parties. Although the provisions in the standard possession order are presumed to be in the children's best interest, the parties can reach their own agreement tailored to their particular situation. Time has variable value. For example, Christmas may be more important to one parent and extensive summer access may be more important to the other parent. These issues need to be clearly identified in order to resolve them.

Property settlement is usually the most easily addressed issue of substance in mediation, unless the marriage is childless. In that case the property issues may be emotionally charged. The key elements in mediating property settlement are the conscientious search for full disclosure of assets, accurate appraisal of those assets, and a well-tempered disposition of the assets that permits the maximum achievement of the needs of the parties and the greatest equity between them. The mediator and the parties' attorneys must attempt to secure a comprehensive listing of all assets and all personal property. The subjective value of all property must be weighed by the parties along with its monetary value. The parties should be encouraged to consider the effect of the property settlement upon their children and upon their future financial positions.

A check list of the parties' assets and liabilities should be utilized in order to be certain that the mediated settlement agreement has included all of the assets and liabilities. A sworn inventory and appraisement should be provided by both parties as a part of full disclosure.

The parties may have disputes regarding interpretation of the law with respect to issues in their case. If so, the attorneys should provide the mediator with copies of case law and articles regarding same.

In summary, in order to have a successful mediation, the mediator needs to know the issues of the parties. The attorneys representing the parties should provide the mediator with a pre-mediation outline to include at least the following:

• Clear and concise statement of the issues and the party's position;
• Identify the strengths (and possible weaknesses) of the position;
• Chronology of significant events in the controversy;
• Outline of negotiations and proposals to date; and
• Copies of pertinent pleadings, case law, articles, and financial information.

Each party and the mediator need to have sufficient information to have meaningful discussions, which is the prelude to reaching a fair agreement.

Results of Judge's Poll

To preserve anonymity, Judges are listed by letter (e.g. Judge A, Judge B, etc.). Judge A in question 1 is the same judge as Judge A in question 2. This pattern is consistent for questions, 1-4, 8-11, and 15-18, which we posed to judges in January, 1999. Questions 5-7, and 12-14 represent research conducted in January, 2000, and while the judges referenced in response to those questions are consistent, they do not match up with the same judges in the other questions.

Disproportionate Division

Divorcing spouses learn quickly that community property does not necessarily have to be divided 50/50. There are innumerable reasons why a court may award more than 50% of the estate to one spouse or another. Common reasons include: future need for support; the other spouse is at fault in the breakup of the marriage; disparity of age, earning ability, education, or health; size of community or separate estate; and wasting of assets during marriage. Guessing what a trial judge will do, even in cases involving common themes, can be a challenge. In order to give litigants a better feel for the parameters of what a trial court may do, we presented the following questions to the judges in our poll:

1. Assuming the following fact situation, what is your opinion regarding an equitable division of the community estate as to each range of values?

Husband and Wife have been married 10 years and have two children, ages 5 and 9. Their net community estate is within the following range. Husband is an executive in a large corporation and earns $200,000 per year. Wife has a bachelor's degree but has not worked outside the home since the birth of their nine year old. The highest annual salary earned by Wife in the past was $30,000 as a teacher. There are no fault allegations.

Responses:

Up to $250,000

Judge

$250,000 to $500,000

Judge

$500,000 to $1,000,000

Judge

Over $1,000,000

Judge

Comments by Judges:

Judge A: Not enough facts.

Judge F: Generally, I would have to know more facts about the fault allegations, range could be 0-5%. This estimate would be better if I knew the type of property and liquidity.

Judge G: I only make a decision after hearing all the facts.

Judge J: I just cannot respond. I seldom order a division more lopsided that 65-35. My record was 70-30, which the parties settled with alimony, and I tend to 50-50 or 55-45.

2. Would the percentage awarded to Wife change if either party committed adultery? If so, please indicate the revised percentage awarded to Wife on the spaces provided above.

Comments by Judges:

Judge A: Depends on exposure and/or knowledge of child(ren) to the adultery. If no knowledge, exposure or child(ren) being left unsupervised, etc. then probably no change.

Judge B: No.

Judge C: No response.

Judge E: No response.

Judge F: If aggravated adultery, I might give more percentage for the fault factor.

Judge G: I only make a decision after hearing all the facts.

Judge H: Figures could vary considerably based on other evidence admitted.

Judge I: No response.

Judge J: See response to question 1.

Judge K: Yes.

3. When you award the residence to a party upon divorce, after you determine the fair market value, do you calculate the net value awarded by deducting:

a) Mortgage balance only: Judges A, C, H, and I

b) Mortgage balance and 100% of the estimated commission and closing costs based upon a sale at the fair market value: Judge B - usually deduct 6% for closing costs; Judges E, G, and K.

c) Mortgage balance and 50% of the estimated commission and closing costs based upon a sale at fair market value: Judge F

d) Other: Judge D - Depends on nature of other property and whether sale of the home is inevitable, by virtue of having to move, not afford payments, etc.; Judge J - I try not to suggest something else for them to fight about.

Commentary
(by Tom Noble)

What do we learn from these responses? Four out of eleven judges who responded refused to commit to a position or policy, stating, for example, "not enough facts". Out of the seven who responded, one was a 50/50 judge all the way. He did not care how much you had or what you did. The other six judges wrestled with how to assess (a) adultery and (b) disparity of earning abilities. From their responses, we can conclude:

• The "adultery penalty," if there is one, is typically 5-10%, with 5% being more likely.
  
  
• The biggest "wild card" is disparity of earning abilities in small to mid-size estates. One judge awarded the wife as much as 70% in a hypothetical no-fault divorce. It is interesting to note that the wife did not get more than this if her husband committed adultery, but if she committed adultery, it cost her 5-10%. Another judge awarded the wife 65% of the estate in a no-fault divorce. Other judges awarded the wife less, and 55/45 was a likely result.
  
  
• There is more than a grain of truth in the unwritten law that "the larger the estate, the more likely the division will be 50/50." As the estate grew in net worth, disparity of earning ability became less of a factor. The judge who was willing to give the wife 65% of an estate under $250,000, gave her 50% of a million dollar estate. The adultery penalty also decreased with the size of the estate (although not consistently).

Family law professionals who are interested in cases involving the extreme parameters of a disproportionate division should consider the following prior cases:

• Cluck v. Cluck, 647 S.W.2d 338 (Tex. App. - San Antonio 1983, writ dism'd): the Court of Appeals affirmed an award of 86% of the community estate to the Wife. Factors: (1) disparity of earning capacity; (2) Husband stipulated to fault; (3) Husband was awarded his law practice, which he valued at net book value; (4) Husband "appropriated" $60,000 of community funds during the pendency of the divorce; and (5) 30 year marriage.
• Morrison v. Morrison, 713 S.W.2d 377 (Tex. App. - Dallas 1986, writ dism'd): the Court of Appeals affirmed an award of 83.5% of the community estate to Wife. Factors: (a) Husband's alcoholism; (b) Husband's adultery; and (c) Husband's expenditures of community funds on other women (although exactly how much he spent is unclear).
• Rafidi v. Rafidi, 718 S.W.2d 43 (Tex. App. - Dallas 1986, no writ): the Court of Appeals affirmed an award of 85-90% of the community estate to Wife. Factors: (a) Husband had more education; (b) Wife has finger injury, which caused her difficulty in obtaining employment; (c) teenage daughter plus 3 adult children lived with Wife; (d) Husband has superior earning capability; (e) Husband was unable to account for a substantial amount of community savings (even though Husband was a careful record keeper); and, (f) Wife had been a housewife during the marriage.
• Oliver v. Oliver, 741 S.W.2d 225 (Tex. App. - Fort Worth 1987, no writ): the Court of Appeals affirmed an award of 80% of the community estate to Wife. Factors: (a) Husband's adultery; and, (b) Husband's superior earning ability.
• Finch v. Finch, 825 S.W.2d 218 (Tex. App. - Houston [1st Dist.] 1992, no writ): the Court of Appeals affirmed an award of 65% of the community estate to Wife. Factors: (a) Husband had greater business opportunities; (b) Wife testified that Husband abused Wife and Wife's daughter; and, (c) Husband had a greater earning capacity than Wife.
  
  
• Golias v. Golias, 861 S.W.2d 401 (Tex. App. - Beaumont 1993, no writ): the Court affirmed an award of 79% of the community estate to Wife. Factors: unknown.

Child Support

Child support issues are common in family law cases, especially in (a) cases in which one of the parties is attempting to justify more than the Texas guidelines recommend; (b) paternity cases in which one of the parties is seeking retroactive child support; and, (c) cases where the children are split up.

4. Do you order child support in an amount above the guidelines?

5. What is the most common basis for your awarding child support above the guidelines?

Comments by Judges:

Judge A: Money available and needs of child(ren) more than normal and other spouse has little earning capacity.

Judge B: Special needs of child.

Judge C: Special needs of children and great disparity of earnings.

Judge D: Needs of the child and day care expenses.

Judge E: Rarely a child with special needs which prevents the primary parent from working justifies above guidelines. Sometimes, private school and lifestyles that can afford extras in a child's life. I have the extras paid directly, however, not in the form of monthly child support.

Judge F: Income beyond the guidelines is the most common reason for doing so.

Judge G: The facts of the case.

Judge H: Where there is evidence of proven special needs of the child, not met by guideline support.

Judge I: 1) Over $6K net wage earner and needs/lifestyle of children; 2) Handicapped children or medical needs; 3) Obligors who don't visit and don't help out with expenses voluntarily.

Judge J: Needs of the child.

Judge K: Needs of child.

Commentary
(by Leota Alexander)

 A substantial majority of the eleven judges (8) who responded advised us that they occasionally ordered child support above guidelines. Three judges said they rarely did so. None of the judges said that they frequently ordered child support above guidelines and none of the judges said that they never ordered it.

This response seems to indicate that all of the responding judges will award child support above guidelines in some instances. Their further responses as to their basis for awarding child support beyond guidelines indicate that the major factor is the needs of the child. Several judges also mentioned income/earnings as a factor.

Although the child support guidelines are presumed to be in the best interest of the child [TFC §154.122(a)] the court can deviate from these guidelines if it determines that the application of the guidelines would be unjust or inappropriate under the circumstances. TFC §154.122(b) sets out factors which the court shall consider, such as age and needs of the child, any financial resources available for the support of the child, the amount of time of possession of the child, the obligee's net resources, child care expenses, college expenses for other children, and special or extraordinary educational or medical expenses.

The term "needs of the child" is included in both Section 154.123 and Section 154.126, although Section 154.123 includes many other factors for the court to consider.

Since the statutes do not define "needs of the child", there are many expenses which could be included in this category.

For example, a court calculated 75% of the entire family expenses to be the needs of the three children. Zajac v. Penkava, 924 S.W.2d 405 (Tex. App. - San Antonio 1996, no writ). The family expenses included the house payment and utilities.

Some examples of cases in which the court awarded child support in amounts beyond guidelines are as follows:

Scott v. Younts, 926 S.W.2d 405 (Tex. App. - Corpus Christi 1996, no writ). The court modified child support, increasing the amount to $2500 per month for one child after calculating the proven needs of the child to be $3250 per month. The child's needs included part of the household budget, as well as expenses to increase the child's self-esteem, such as private school, extracurricular activities, and summer camp.

Zajac v. Penekava, 924 S.W.2d 405 (Tex. App. - San Antonio 1996, no writ). The court's award of $3000 per month was upheld based on the future monthly needs of three children exceeding $8300, which included a nanny, travel expenses, vacations, gifts, private school, and 75 percent of a house payment. The obligor's net income ranged from $10,000 to $12,000 per month.

Villasenor v. Villasenor, 911 S.W.2d 411 (Tex. App. - San Antonio 1995, no writ). The court modified a child support order to require the father to pay the entire $4000 per month for two sons' proven living expenses who lived with the mother. The mother was not ordered to pay any child support for the parties' daughter residing with her father with proven living expenses of $2000 per month. Thus, the court actually required the father who was earning $55,333 per month to pay 100 percent of the proven living expenses for all three children.

Thomas v. Thomas, 895 S.W.2d 895 (Tex. App. - Waco 1995, writ denied). In this case the father had stipulated that his monthly net income exceeded $6000 per month and the evidence supported a finding that the children's proven needs were from $2347 to $4273. The court increased the child support award to $3000 per month on the basis that it was less than 100 percent of the children's proven needs. Some of the needs offered as evidence included vet bills, major credit cards, home repairs, magazines and newspapers. The court did not specify which of the listed needs, if any, were not proven needs.

Roosth v. Roosth, 889 S.W.2d 445 (Tex. App. - Houston [14th District] 1994, writ denied). The court awarded $3000 per month as child support for four children in a divorce action. The amount was based upon the father's past unemployment, current intentional underemployment, his ability to earn over $100,000 per year, and his decision to "live off" gifts from his in-laws. The children's proven monthly expenses were $9337.

In the Interest of Pecht, 874 S.W.2d 797 (Tex. App. - Texarkana 1994, no writ). The court increased a prior child support award to $3500 per month for two sons based on both sons' needs for their learning disorders which created behavioral, physical and emotional problems. The sons required medication, therapy, a full-time housekeeper, special summer camps and private school for one son. The father's monthly net resources were almost $16,000.

Golias v. Golias, 861 S.W.2d 401 (Tex. App. - Beaumont 1993, no writ). The court ordered the father to pay $2200 child support per month for two children in a divorce where the father's net income exceeded $9000 per month, plus fringe benefits including a car, car insurance, a rent-free $600,000 home, furnishings and food. The children's proven needs were at least $2408 per month.

6. Suzy became pregnant while she and George were dating. Suzy broke off the relationship, preferring Tom. After having the child, and soon after discovering that Tom's idea of parenting was teaching the child, Craig, how to watch TV, Suzy dumped Tom and raised Craig as a single parent. As Craig grew older, he began driving Suzy crazy wanting to know who his Dad is. Finally, Suzy relented and promised Craig that she would contact his Dad and make arrangements for them to meet. Suzy wrote George a letter informing him that Craig is his child and asking him to spend a little time with the tyke. George refused and told her that his wife would not stand for him to have a relationship with Craig. Thinking that it might improve George's attitude, Suzy contacted the A.G.'s office, and they sued George to establish paternity and collect child support.

The A.G.'s office wants George to pay child support retroactive to the date of the birth of the child. Craig is now ten years old. George has made over $100,000 per year each year since Craig's birth. Suzy has been employed off and on and has never made over $30,000 per year. How much retroactive child support should George pay?

a. guideline support retroactive to the date of the child's birth: None.
b. guideline support retroactive to the date when George learned that Craig is his child: Judges A, B, C, D ³ , E ⁴ , F, and G.
c. guideline support retroactive to the date when the petition was filed: Judges A, B
d. none: None
e. other: See comments below.

Editor's Note: Judges A and B circled more than one answer. Go figure!

Would your answer differ if Suzy were independently wealthy?

Judge A: No response

Judge B: No.

Judge C: Whether the State had paid AFDC would also be a factor. It would make no difference if Suzy were wealthy, in which case, there would not likely be any state money involved.

Judge D: No.

Judge E: No.

Judge F: No.

Judge G: No.

7. Assume that two divorcing parents work, that they have been co-parenting the children during the marriage, and they have agreed to share periods of possession with the children on a 50/50 basis.

A) If the parents have equal income, would you order either of them to pay child support to the other? If so, what method would you use to compute child support?

Judge A: Maybe not, depending on the facts.

Judge B: No.

Judge C: No.

Judge D: No.

Judge E: I would order each parent to pay one-half of the child's expenses over and above the actual room, board, and clothing. That way, if one parent would not cooperate as to payment, an order would be in place.

Judge F: No.

Judge G: Probably not.

B) If one parent has an annual income of $100,000, and the other parent has an annual income of $30,000, would you order the high income parent to pay child support to the other? If so, what method would you use to compute child support?

Judge A: I would use equalizing formula, and I would order high income earner to pay.

Judge B: Calculate child support on each income and order the difference paid (percentage used depends on number of children).

Judge C: Yes, based upon the difference between the respective support obligations if each were paying the other. I would net out so there would be only one obligor.

Judge D: Yes. Calculate the code guideline child support for each and offset.

Judge E: Generally, I would have each parent pay child support for the period of time they do not have the child based upon their earnings. Each parent should pay the other parent based upon their earnings.

Judge F: No.

Judge G: Probably calculate what each would pay and subtract difference.

8. Assume that two divorcing parents have agreed that one parent will have primary possession of Adam and standard possession of Amy, and the other parent will have primary possession of Amy and standard possession of Adam ("split custody arrangement").

A) If the parents have approximately equal income, would you order either of them to pay child support to the other? If so, what method would you use to compute child support?

Judge A: No, unless facts dictate.

Judge B: Not until older turned 18.

Judge C: Not until the older child reached 18; then based upon guidelines.

Judge D: No.

Judge E: Generally, I would not require child support under those circumstances.

Judge F: No.

Judge G: Probably not, unless one of children had some special needs and other did not.

B) If one parent has an annual income of $100,000, and the other parent has an annual income of $30,000, would you order the high income parent to pay child support to the other? If so, what method would you use to compute child support?

Judge A: I would use equalizing formula, and I would order high income earner to pay.

Judge B: Use 17.5% of both incomes and order the difference.

Judge C: Yes, based upon the difference between the respective support obligations if each were paying the other. I would net out so there would be only one obligor.

Judge D: Yes. Calculate the code guideline child support for each and offset.

Judge E: Generally, I would require each party to pay the other party child support based upon their earning ability.

Judge F: No.

Judge G: Probably calculate what each would pay and subtract difference.

Periods of Possession

Again, predicting when a judge may deviate from the guidelines can be problematic.

9. Do you grant possession/access for periods in excess of the Standard Possession Order guidelines?

a) Frequently: Judges E, I, J, and K
b) Occasionally: Judges A, B, C, D, F, G, and H
c) Rarely: None
d) Never: None

10. What is the most common basis or reason for your granting possession/access that exceeds the Standard Possession Order guidelines?

Comments by Judges:

Judge A: Background of parents with child(ren), needs of child(ren), availability of parent to exercise more than standard.

Judge B: Work schedule.

Judge C: Two good parents.

Judge D: Age (under five); availability of parent because of work schedule.

Judge E: Past patterns of visitation were above guidelines or evidence of commitment to participate in special programs or plans.

Judge F: Sometimes to rectify a refusal to grant access without a Court Order, sometimes because of a special bond between child and noncustodial parent or other similar reasons.

Judge G: The facts of the case.

Judge H: Prior substantial involvement with the child and a relationship of the child with the non primary parent.

Judge I: Kids need frequent contact with both parents.

Judge J: Schedules of parties. Relationship with child.

Judge K: Continuing the status quo, ages of the children, two good parents

11. Husband and Wife have two children: ages 3 months and 18 months at the date of divorce. Wife has stayed home with the children since the birth of the older child. Husband has a regular 40 hour per week job. Husband has participated in care of the children during evenings and on weekends. Wife is breast-feeding the younger child. Both parties are good parents with no significant problems. The parties have agreed that they will be joint managing conservators, and that Wife will have "primary" possession, but they cannot agree upon Husband's periods of possession.

A) What periods of possession would you grant to Husband regarding the 3 month old child?

Judge A: frequent but short visits.

Judge B: cannot answer without more testimony

Judge C: 3-4 times per week, not to exceed 2 hours; no overnights

Judge D: with both children together, I would consider every day access from 5:30 p.m. until 8:30 p.m., with every other night or every third night overnights. Each weekend Dad would have one full day with an overnight. This possession would be with both children, but it would be nice if one of Dad's possession times each week would be with just one child so that each parent would have time alone with a child. Mother needs to express her milk and supply it to Dad.

Judge E: Generally, I would require a Husband to have short periods of access (no overnight) until I was satisfied that he was capable of taking care of the child. I might even require some of that to be in the presence of the mother so she could be satisfied that he would know how to take care of the child.

Judge F: Standard if he wants it; or 50/50 (one week on and one week off).

Judge G: Frequent access every few days, 2-3 hour intervals.

B) What periods of possession would you grant to Husband regarding the 18 month old child?

Judge A: probably standard with a little tweaking

Judge B: cannot answer without more testimony

Judge C: 1st and 5th Saturdays from 9:00 a.m. until 6:00 p.m.; 3rd Saturday from 9:00 a.m. until 6:00 p.m.; Tuesday and Thursday for two hours until age 2; at age 2, 1st, 3rd, and 5th weekends from Saturday at 9:00 a.m. until Sunday at 6:00 p.m., and one weekday for two hours.

Judge D: Same as A, above.

Judge E: If the Husband had had good contact with that child, he should be able to stay overnight with the father. If there has been a period of time when the father has not been around the child, I would require some limited access prior to full visitation and including an overnight.

Judge F: Standard if he wants it; or 50/50 (one week on and one week off).

Judge G: 1st, 3rd, and 5th Saturday overnight to Sunday, overnight Wednesday; possibly standard depending on parents and nature of relationship between father, child, and mother.

12. Do you have any predisposition regarding a 50/50 possession schedule in a contested custody battle? If so, would you described your predisposition as:

a) Generally, in favor of 50/50: Judge C
b) Generally, against 50/50: Judges A, B, F, and H
c) Every case is different: Judges B, D, E, F, G, I, J, and K
d) Other: Judge I - it's great for right kids and right parents; Judge K - what was the status quo? Did it work? age of children?

13. What periods of possession would you grant if one child were 9 months old and the other were 2 years old?

Judge A: longer visits than with a three month old and standard with older child

Judge B: cannot answer without more testimony

Judge C: same as stated under 12.

Judge D: no response

Judge E: Same as stated in response to prior question. I might check to see if the father has another older person who might sit in with him to give him some instructions on how to take care of the children.

Judge F: Standard if he wants it; or 50/50 (one week on and one week off).

Judge G: standard for 2 year old; frequent access with 9 month old to include 6-8 hours on weekends.

Commentary
(by George McKearin)

Chapter 153 of the Texas Family Code, §153.001 through §153.434 is titled Conservatorship, Possession and Access.

§153.001 states "The public policy of this state is to: (1) assure that children will have frequent and continuing contact with parents who have shown the ability to act in the best interest of the child; (2) provide a safe, stable, and non-violent environment for the child; and (3) encourage parents to share in the rights and duties of raising their child after the parents have separated or dissolved their marriage."

§153.002 mandates that "The best interest of the child shall always be the primary consideration of the court in determining the issues of conservatorship and possession of and access to the child."

The Standard Possession Order is found in Subchapter F of Chapter 153, §153.311 through §153.317.

§153.312 (Parents Who Reside 100 Miles or Less Apart) and Section §153.313 (Parents Who Reside Over 100 Miles Apart) have generally been accepted by the Bench and Bar. §153.252 indicates that the times set forth in these two sections create a rebuttable presumption for the "reasonable minimum possession of a child" and are in the best interest of the child.

Any attempt to vary from Standard Possession Order should be done with the public policy and best interest sections in mind. If they cannot reach an agreement, litigants will have to present evidence to the court to justify deviations from the Standard Possession Order.

In Holley v. Adams, 544 S.W. 2d 367 (Tex. 1976), a termination case, the Texas Supreme Court enumerated a number of factors, which it considered to be relevant in ascertaining the best interest of the child, as follows: (a) the desires of the child; (b) the emotional and physical needs of the child now and in the future; (c) the emotional and physical danger to the child now and in the future; (d) the parental abilities of the individuals seeking custody; (e) the programs available to assist these individuals to promote the best interest of the child; (f) the plans for the child by these individuals or by the agency seeking custody; (g) the stability of the home or proposed placement; (h) the acts or omissions of the parent which may indicate that the existing parent-child relationship is not a proper one; and (i) any excuse for the acts or omissions of the parents." While these principles were enumerated nearly a quarter of a century ago, they are still primary areas where evidence needs to be brought to bear to persuade a court to deviate from the Standard Possession Order.

Voros v. Turnage, 856 SW 2d 759 (Tex. App. - Houston, [1st District] 1993, writ denied), discusses the rebuttable presumption mentioned above and affirmed a trial court's discretion on modifying the standard possession wherein the Wednesday overnights and the extended holiday visitations were eliminated from the possessory conservator's visitation. The case presents some of the findings of fact which persuaded the trial judge to deviate from the standard possession order.

In Albrecht v. Albrecht, 974 SW 2nd 462 (Tex. App. - San Antonio 1998, no writ), we have a decision that wrestled with the concept of joint managing conservatorship and times allocated to the mother and father. In this case a jury determined under §105.002 that the father was to serve as the joint managing conservator with primary care for his son. The judge, however, set periods of possession as six months on and six months off. The Appellate court reaffirmed that the Standard Possession Order provided by Subchapter F of Chapter 153 constitutes a "presumptive minimum amount of time for possession of a child" by the parent not designated the primary joint managing conservator. The Appellate court reaffirmed that the best interest of the child was to be the trial court's guiding light in awarding possession.

The Appellate court determined, however, that the trial court's order providing for six months on and six months off was an abuse of discretion because it effectively eviscerated the jury's determinations. The court also gave several practical hints as to the problems of expecting a joint managing conservatorship to work where the parents could not cooperate, problems in getting adequate child care in a six on/six off situation, the problems of school attendance and the stress that all of this would cause the child.

14. In a situation where the parent with "primary" possession (possessory parent) wishes to move the children from the county where the non-possessory parent still resides, please rank the following factors as to importance in making your decision. ("1" is most important, "6" is least important).

a) Possessory parent has remarried and the new spouse lives in another state or county.

Judge

Total: 36

b) Possessory parent has been transferred by employer to a job site located in another state or county.

Judge

Total: 16

c) Non-possessory parent does not regularly exercise court-ordered possession.

Judge

Total: 19

d) Non-possessory parent moved the family to the county of divorce a short period prior to the divorce and the possessory parent would like to move back to the place where the children had resided for years.

Judge

Total: 15

e) Possessory parent's new spouse has been transferred to another county or state by employer.

Judge

Total: 28

f) Possessory parent wants to move closer to his/her parents.

Judge

Total: 37

Comments by Judges:

Judge D: No response.

Judge G: Judge indicated that all of the above were considered.

Judge I: I usually don't let them move!

Judge K: All are variables to be considered.

15. In view of the amendment to TFC section 153.134(b)(1), what is your policy with respect to restricting the residence of the children? Have you changed your policy because of the amendment?

Judge A: fact driven

Judge B: the posted Dallas County policy

Judge C: Residence of the child is restricted to Dallas and contiguous counties as long as non-primary parent resides in one or more of those counties.

Judge D: Both parents need to be in close proximity so that the presumption is that the residence of the children should be established in Dallas County. No change because of amendment.

Judge E: It is my understanding that the best interest of the child supercedes any general policy of allowing one parent to move the child away from the other parent. In reviewing the statute, I would think that the exclusive right to determine the primary residence of the child would mean within the geographical area that the Court had limited the child's residence.

Judge F: Dallas County only, but if pushed I will follow the statute and expand to contiguous counties.

Judge G: Dallas County; Dallas and contiguous in some cases.

Commentary
(by George McKearin)

Until September 1, 1999, §153.134 provided "(b) In rendering an order appointing joint managing conservators, the court shall: (1) establish the county of residence of the child until altered by further order, or designate the conservator who has the exclusive right to determine the primary residence of the child".

Standard practice in Dallas County and surrounding counties was to designate the county of divorce and contiguous counties as the area within which the primary joint managing conservator could determine primary residence of the child, assuming, of course, that the "other" joint managing conservator was going to stay in the area. Sometimes the courts were more restrictive. Examples of restricting the ability to determine primary residence within a given school district were not unheard of. Dallas County courts experimented with a Dallas County only provision with mixed enthusiasm and results.

The legislature changed this provision and as of September 1, 1999, the following language became effective.

§153.134 (Court-Ordered Joint Conservatorship), provides in Subsection (b) that "In rendering an order appointing joint managing conservators, the court shall: (1) designate the conservator who has the exclusive right to determine the primary residence of the child and: (A) establish, until modified by further order, a geographic area consisting of the county in which the child is to reside and any contiguous county thereto within which the conservator shall maintain the child's primary residence; or (B) specify that the conservator may determine the child's primary residence without regard to geographic location."

As you can see from the judges comments with respect to the new statute, we are still extremely proud of having our children live within Dallas County. Surrounding counties have been more adaptive.

While the initial determination of conservatorship, possession and access must be considered within the context of Chapter 153 of the Texas Family Code and case law interpreting it, modifications are governed by Chapter 156 of the Texas Family Code. Subchapter B deals with modification of sole managing conservatorships, C with modifications of joint managing conservatorships and D with modification of possession of or access to child.

There has generally been great reluctance by the courts to allow the "primary" possessory parent to move the children from the county where the non-possessory parent still resides. Again the litigants will need to present evidence to the court pro and con to allow the court to decide whether to allow the requested modification to take place. We have tried to give you some ideas as to the courts' thinking in the above question and answer scenario.

Since most often you are going to be dealing with modification of a joint managing conservatorship, §156.202 (Modification of Terms and Conditions of Joint Managing Conservatorship) provides as follows: "The court may modify the term and conditions of a joint conservatorship order if: (1)(A) the circumstances of the child or one or both of the joint managing conservators have materially and substantially changed since the rendition of the order; or (B) the order has become unworkable or inappropriate under existing circumstances; and (2) a modification of the terms and conditions of the order would be a positive improvement for and in the best interest of the child."

Subchapter D imposes these same requirements to modify the possession and access and specifically references the guidelines from Chapter 153 as a benchmark for any modifications in §156.302.

In Villasenor v Villasenor, 911 SW 2nd 411 (Tex. App. San Antonio 1995, no writ), the court was faced with an appeal from a divorce which restricted the child's residence to Bexar County. The court reiterated time honored positions that the best interest of the child is the primary consideration in determining conservatorship or residency and that the trial courts have great discretion in making this determination. Appellant wanted to lift the restriction because she wanted to be able to move to Houston to attend graduate school. The court stated that "if the court allowed the move, Hector and his son would not continue to enjoy their closer relationship. In addition, the children would be separated from their sister." We cannot say the trial court abused its discretion in naming Bexar County as the residency of the boys, Carlos and Andre. Page 419.

Weldon v. Weldon, 968 SW 2nd 515 (Tex. App. Texarkana 1998, no writ), emphasizes the need for following the proof requirements of Chapter 156 (Modification). In Weldon, at the time of the divorce, the alternative possession times of §153.317 providing for pick-up after school and returning at the time school resumes were discretionary with the court. Subsequent to the divorce the section was modified so that the standard order "must" allow the alternative possession times if the possessory conservator (non-primary joint) so elects.

Chad Weldon tried to effect this modification after the divorce but failed to meet the "materially substantial change" standard set forth in §156.301. The Appellate court found that the trial court's decision was within its sound discretion and there was nothing in the record indicating any abuse of discretion in the trial court's findings.

Alimony

Court-ordered alimony is new to Texas. The research below may give you a better idea of how judges are implementing the new statute.

16. Have you ever granted statutory alimony? If so:

a) Approximately how many times?

Judge A: Less than 5 times

Judge B: 20

Judge C: 3

Judge D: 5-10

Judge E: 5-10

Judge F: 4-6

Judge H: 2

Judge I: 3

Judge J: 0

Judge K: 0

b) Average length of duration?

Judge B: 24 months

Judge D: 24-36 months

Judge E: 36 months

Judge H: 36 months

c) Average amount?

Judge B: Usually require that spouse be enrolled in school or training in order to receive money.

Judge D: $500-1,000 per month

Judge E: closer to 20% of gross if no child support ordered

Judge F: ranged up to maximum

Judge G: Judge indicated has granted statutory alimony, but has not kept any statistics.

Judge H: $250+ per month.

Commentary
(by Suzanne Duvall)

Texas was the last state in the United States to allow post-divorce alimony. Even though the statute has been in place since 1995, it is largely symbolic rather than practical; is restricted in its application; and is in the discretion of the Court. In re Hale 957 S.W. 2nd 694 (Tex. App. Texarkana - 1998, no writ).

Thousands of family law cases have come before the courts surveyed since the statute's inception. The results of the judges' survey, however, show that the numbers of cases in which statutory alimony was awarded were miniscule. Only one court had ordered alimony as many as 20 times. Most courts awarded alimony fewer than six times and two courts had not awarded alimony to anyone. One might have a better chance of winning the lottery!

Furthermore, although the statute allows for payment up to 36 months (or indefinitely based on mental and/or physical incapacity), two of the four judges who responded awarded only twenty-four months' payments, while the other two had ordered 36 months' payment.

In terms of amount ordered, the statute allows 20% of the payer's income, or $2,500 per month, whichever is less. Yet only two of the six reporting judges awarded the maximum payment (and one of those qualified that amount by adding "…if no child support is ordered"); one awarded only one-tenth "+" of the $2,500.00 maximum; one ordered $500.00 - $1,000.00 per month; the remaining judges listed no amount awarded, but one stated that s/he "usually require(s) that spouse be enrolled in school or training in order to receive money".

In Alexander v. Alexander 982 S.W. 2nd 116 (Tex. App. Houston [1st District] 1998, no writ) the Houston trial court awarded post-divorce spousal support to allow a spouse in a 14 year marriage to complete college, noting that she had few job skills, that she had insufficient property to provide for her minimum needs, and that she had diligently sought suitable employment to become self-supporting.

In setting out the standards applied to those seeking alimony under the Texas statute, the Court in Alexander v. Alexander stated:

Generally, there is a presumption that maintenance is not warranted unless the spouse is seeking suitable employment or developing skills to become self supporting while the spouses are separated and the divorce suit is pending. If a trial court determines a spouse is eligible for spousal support, it shall determine the amount and duration by considering all of the relevant fathers in directing the financial resources of both spouses; medical, retirement, insurance, and other benefits; the education and employment skills of both spouses; time required for the spouse seeking support to acquire sufficient education or skills to support herself; the length of the marriage; the age, employment history, earning ability and health of the spouse seeking support; the ability of the spouse from whom child support and spousal support; and a spouse's contribution as homemaker.

Attorneys' Fees

Many divorcing spouses feel "wronged" because they do not want a divorce. Disputes over who pays whose attorneys' fees are common. What can parties expect from our trial judges?

17. Do you award attorney's fees in a divorce case?

a) Frequently: Judges E, F, and H
b) Occasionally: Judges A, C, D, G, I, J, and K
c) Rarely: Judge B
d) Never: None

18. What is the most common basis for your awarding attorney's fees in a divorce case?

Comments by Judges:

Judge A: Unequal earning capacity of the parties.

Judge B: Either 1) one party has no funds and will probably not receive sufficient property when divorce is finalized to pay their own attorney's fees or 2) one of the parties made me mad.

Judge C: Ability of party to pay/earnings of party.

Judge D: Reasonableness of the position taken by a party, i.e. whether a party's unreasonable requests prolonged or extended the litigation unnecessarily.

Judge E: 1) one side made a reasonable proposal which I ended up awarding; 2) one side's behavior deserves to be punished; 3) the division of property makes awarding fair and equitable.

Judge F: 1) Fault; 2) Disparity of income; 3) General activity of the parties during the pre-filing and post-filing period.

Judge G: The facts of the case.

Judge H: When the attorneys have not been paid and there are assets from which to pay the fees.

Judge I: Fault and disproportionate earning capacity.

Judge J: The other side has hidden his/her purse or been needlessly wasteful of family or court resources.

Judge K: One attorney did most of the work or the other side is pro se.

Commentary
(by Suzanne Duvall)

Under Texas Family Code §106.002 and §9.014 courts may award "reasonable" attorney's fees as costs in most family law cases. In addition, §6.708, §9.013 and §106.001 authorizes the courts to award costs in suits filed under most provisions of the Family Code. The award of such fees and costs is solely in the discretion of the Court.

Although all judges surveyed have ordered attorney's fees in divorce cases, only three judges do so on a frequent basis, while the majority do so only "occasionally" and one only "rarely".

Some of the issues considered by the judges in determining whether or not to award attorney's fees are: (1) fault in the creation of the attorney's fees (as distinguished from fault in the breakup of the marriage); (2) disparity of earning capacity; (3) assets available from which to pay the fees; (4) waste of community assets; and (5) the reasonableness of the party's position.

Perhaps the most telling rationale applied by judges in awarding attorney's fees is found in the answers of Judge B and Judge E. Judge E: "one sides' behavior deserves to be punished"; Judge B "one of the parties made me mad"!

The following are the most recent case examples of judicial decisions in the award of attorney's fees in family law cases:

In Black v. Dallas County Child Welfare Unit, 835 S.W.2d 626 (Tex. 1992), the Court ordered substantial attorney's fees to a harassed parent because of the unreasonable persistence by Dallas CPS after the trial court rejected its allegations of abuse.

In D.R. v. J.A.R., 894 S.W. 2nd 91 (Tex. App. - Fort Worth 1994, writ denied), the court made a major award of attorney's fees after a frivolous and harassing modification motion and attempt to terminate father's rights.

In McDuffie v. Blassingame, 883 S.W. 2nd 329 (Tex. App. Amarillo 1994, writ denied), in a suit affecting the parent child relationship the court found the father's suit against the mother and her attorney groundless and awarded attorney's fees to the mother.

In McPherren v. McPherren, 967 S.W. 2nd 485 (Tex. App. El Paso 1998), the appellate court ruled that the trial court had statutory authority to award attorneys fees in favor of the former husband in a proceeding to clarify and enforce the divorce decree's property division.

Footnotes:
¹ See: Fischer and Ury, Getting to Yes (p. 97, et seq.)
² Readers familiar with Fisher and Ury's work will notice some familiarity with their suggestions and the AGICOP method.
³ Judge D: There are many variables the Court reviews. If George simply closed his eyes to the whole thing and his relatives and friends were telling him he had a child, the retroactive date would be farther back but not usually to the child's birth. The Mother had a duty to bring an action earlier.
⁴ Judge E: All periods prior to his notice would have to be calculated for support upon the earnings that he made during those periods rather than his current earnings.