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Articles and Case Summaries
Marriage, Kids, and Money Evaluating Your Family Law Case for Mediationpresented to the Dallas Bar Association Family Law Section
September 29, 1999
by Leota Alexander, Suzanne Duvall, Honorable Craig Fowler, George McKearin, and Tom Noble Introduction In the fall of 1998, the ADR Section of the Dallas Bar Association decided to present a Family Law Program in January, 1999. Leota Alexander, Suzanne Duvall, George McKearin and Tom Noble met and through a series of meetings decided to poll the judges in Dallas and contiguous counties about their attitudes in certain areas of family law. The primary purpose was to gain a general understanding of the courts’ attitudes in areas that were being frequently contested. The result of the meetings was questions one to twelve. These questions were then disseminated to the courts in Dallas, Collin, Rockwall, Kaufman, Tarrant and Denton Counties. The questionnaire addresses the following issues:
Responses were ultimately received from all of the Dallas County Courts and two courts each, out of Collin and Tarrant Counties. These results along with some hypothetical fact situations were presented in a mediation training forum in January 1999 by the ADR Section. Furthermore, Judge Fowler sent these same questions, one to twelve, to several other judges around the state and used the results in his paper presented at the Advanced Family Law Course in August, 1999. All the presenters of this program sincerely hope that the knowledge gained will enable attorneys to represent their clients more effectively and knowledgeably when dealing with the problems that these twelve questions address. The intention of the ADR Section is to formulate similar questions on an annual basis, in an ongoing effort to assist attorneys in knowledgeable and effective representation in family law matters. RESPONSES FROM THE JUDGES 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.
Judge a. Not enough facts. 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. g. I only make a decision after hearing all the facts. 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. 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. b. No. c-e. No response. f. If aggravated adultery, I might give more percentage for the fault factor. g. I only make a decision after hearing all the facts. h. Figures could vary considerably based on other evidence admitted. i. No response. j. See 1. j. k. Yes. Commentary
What dowe 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:
3. Do you order child support in an amount above the guidelines? Judge a) Frequently b) Occasionally c; d; f-Usually no facts presented to support it; g; h; i; j; k; c) Rarely a; b; e; h d) Never 4. What is the most common basis for your awarding child support above the guidelines? Judge a. Money available and needs of child(ren) more than normal and other spouse has little earning capacity. b. Special needs of child. c. Special needs of children and great disparity of earnings. d. Needs of the child and day care expenses. 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. f. Income beyond the guidelines is the most common reason for doing so. g. The facts of the case. h. Where there is evidence of proven special needs of the child, not met by guideline support. 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. j. Needs of the child. k. Needs of child. 5. Do you grant possession/access for periods in excess of the Standard Possession Order guidelines? Judge a) Frequently e; i; j; k b) Occasionally a; b; c; d; f; g; h c) Rarely d) Never 6. What is the most common basis or reason for your granting possession/access that exceeds the Standard Possession Order guidelines? Judge a. Background of parents with child(ren), needs of child(ren), availability of parent to exercise more than standard. b. Work schedule. c. Two good parents. d. Age (under five); availability of parent because of work schedule. e. Past patterns of visitation were above guidelines or evidence of commitment to participate in special programs or plans. 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. g. The facts of the case. h. Prior substantial involvement with the child and a relationship of the child with the non primary parent. i. Kids need frequent contact with both parents. j. Schedules of parties. Relationship with child. k. Continuing the status quo, ages of the children, two good parents 7. Do you have any predisposition regarding a 50/50 possession schedule in a contested custody battle? If so, would you described your predisposition as: Judge a) Generally, in favor of 50/50 c b) Generally, against 50/50 a; b; f; h c) Every case is different b; d; e; f; g; i; j; k d)Other: i - it’s great for right kids and right parents; k - what was the status quo, did it work; age of children. 8. 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)Total: 20 Possessory parent has remarried and the new spouse lives in another state or county. Judge
b)Total: 40 Possessory parent has been transferred by employer to a job site located in another state or county. Judge
c)Total: 37 Non-possessory parent does not regularly exercise court-ordered possession. Judge
d)Total: 41 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
e)Total: 28 Possessory parent’s new spouse has been transferred to another county or state by employer. Judge
f)Total: 19 Possessory parent wants to move closer to his/her parents. Judge
d. No response written. g. Judge indicated that all of the above were considered. i. I usually don’t let them move! j. All are variables to be considered. Commentary Three out of the eleven judges did not respond. The eight who did respond give us a pretty good indication of the relative importance of various fact scenarios in the judges minds. Question eight asks the court to rank these six different fact scenarios, 1 being most important, 6 being least important. If we assign point values to them in an inverse ratio, the most points any of the scenarios could have accumulated, given eight judges responding at six points a piece would have been forty eight: a) garnered twenty points, b) - forty, c) - thirty seven, d) - forty one, e) - twenty eight, and f) - nineteen. If you have a fact scenario similar to b, c, d, or e, you at least have a fighting chance. 9. Have you ever granted statutory alimony? If so: a) Approximately how many times? Judge a. Less than 5 times b. 20 c. 3 d. 5-10 e. 5-10 f. 4-6 h. 2 i. 3 j. No k. No b) Average length of duration? Judge b. 2 years d. 24-36 months e. 3 years h. 3 years c) Average amount? Judge b. Usually require that spouse be enrolled in school or training in order to receive money. d. 500-1000 e. closer to 20% of gross if no child support ordered f. ranged up to maximum g. Judge indicated has granted statutory alimony, but has not kept any statistics. h. +250 per month. Commentary Remember that Chapter 8. Maintenance. of the Texas Family Code became effective April 17, 1997. The courts answered this question in the last few months of 1998. About a year and a half of history and a rather small number of court ordered statutory alimony cases. Two of the Dallas county courts said they had never granted statutory alimony. Significantly, however, nine of the eleven courts had. If you have a client who is eligible, you need to address this issue. 10. 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: Judge a) Mortgage balance only. a; c; h; i b) Mortgage balance and 100% of the estimated commission and closing costs based upon a sale at the fair market value. b - usually deduct 6% for closing costs; e; g; k c) Mortgage balance and 50% of the estimated commission and closing costs based upon a sale at fair market value. f d) Other: 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. Commentary It is safe to say that all of the courts will deduct the mortgage balance. For both Tarrant County courts, that is the case. Also, one Collin County court and one Dallas court stopped with the mortgage balance. In the other courts, you need to be prepared to put on your proof as to commission and closing costs and to argue for the full amount or none, depending upon which side you are on. 11. Do you award attorney’s fees in a divorce case? Judge a) Frequently e; f; h b) Occasionally a; c; d; g; i; j; k c) Rarely b d) Never 12. What is the most common basis for your awarding attorney’s fees in a divorce case? Judge a. Unequal earning capacity of the parties. 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. c. Ability of party to pay/earnings of party. d. Reasonableness of the position taken by a party, i.e. whether a party’s unreasonable requests prolonged or extended the litigation unnecessarily. 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. f. 1) Fault; 2) Disparity of income; 3) General activity of the parties during the pre-filing and post-filing period. g. The facts of the case. h. When the attorneys have not been paid and there are assets from which to pay the fees. i. Fault and disproportionate earning capacity. j. The other side has hidden his/her purse or been needlessly wasteful of family or court resources. k. One attorney did most of the work or the other side is pro se. LEOTA H. ALEXANDER LEOTA H. ALEXANDER, P.C. 8080 N. Central Expressway, Suite 1500 Dallas, Texas 75206 (214) 987-2191 (214) 987-3413 (Fax)
EDUCATION: University of Wyoming, B.A. with honors 1963, Phi Beta Kappa Texas Tech University, J.D. with honors 1970, Texas Tech Law Review PROFESSIONAL ACTIVITIES, AFFILIATIONS AND HONORS: Board Certified Family Law, Texas Board of Legal Specialization 1980 Dallas Bar Association (Board of Directors 1995-99; Family Law Section; Member ADR Section) Texas Board of Legal Specialization (Chairman of Exam Committee for Board Certified Family Law Legal Assistants, 1994-present) American Bar Association (Family Law Section) Texas Association of Family Law Lawyers State Bar of Texas (Family Law Section and ADR Section) District Grievance Committee Professional Enhancement Program 1995-99 (Chairman 1996-99) District Grievance Committee 1974-81 (Chairman 1978-79) Lubbock County Bar Association (Treasurer 1972-73; Director 1978-79) Assistant County Attorney, Lubbock County, 1970-71 AUTHOR AND SPEAKER: Advanced Family Law Course, State Bar of Texas Texas Tech Law Review, Family Code Symposium Practice Skills Course, State Bar of Texas Stay Abreast of Law Seminar, Texas Tech Law School Family Law for the General Practitioner, State Bar of Texas Divorce 1984 Institute, State Bar of Texas How to Avoid Legal Malpractice, State Bar of Texas Texas Family Law Practice for Paralegals, Half Moon LLC
EDUCATOR: Adjunct Professor of Law, Texas Tech Law School (1977-80) Adjunct Professor of Law, Texas Wesleyan Law School (1992-96) GEORGE S. McKEARIN Attorney • Mediator 1901 N. Central Expwy., Suite 415 Richardson, Texas 75080 (972) 889-3825 / Fax (972) 889-3827 gsmmed1@airmail.net EDUCATION B.A. Hamilton College, Clinton, NY - 1966 J.D. Southern Methodist University - 1969 EMPLOYMENT 1969-1972 Texas Instruments/government and oil and gas contract administrator 1972-1973 Asst. D. A., Dallas County, Texas 1974-Present Private practice of law 1992-Present Mediator MEMBERSHIPS State Bar of Texas - 1969 CIVIC AND LEGAL Dallas Bar Association - 1974, Member Family Law and ADR Sections Collin County Bar Association - 1998 U.S. Supreme Court - 1973; U.S. Court of Appeals, 5th Circuit - 1973; N. District of Texas - 1974 State Bar College - 1985 Society of Professionals in Dispute Resolution - 1991 Texas Association of Mediators - 1992 Chairman, ADR Section DBA - 1998 Association of Attorney Mediators, Inc. - 1991 , National Family Law Committee Chairman - 1993 President of The Mediation Council - 1996 Academy of Family Mediators - 1998 Board Member, Parks and Recreation Commission, Richardson, Texas - 1994-1995 Board Member, Children's International Summer Villages - Dallas Chapter - 1992-1996 Richardson East Rotary, Secretary - 1997-1998; Program Chair - 1998-1999; Sergeant at Arms - 1999-2000 First United Methodist Church, Richardson, Chair, Adult Education Council - 1997; Chair, Seminar and Retreats Committee - 1998-1999 MEDIATION Forty hour Mediation Training Program by the DBA - 1991 QUALIFICATION AND TRAINING Twenty-four hours of training, family dynamics, child development, and family law through ETSU, February, 1992 Ten hours Dallas Family Courts co-mediation training, January, 1993 Twenty hours advanced negotiation and mediation training CDR Associates, April, 1994 Twenty-three hours, Negotiating Strategies for Mediation and Other Dispute Resolution Programs; Conflict Management Group, New Orleans - April, 1996 Eleven hours Arbitration Law Course, Texas Bar Assoc., October, 1998 Texas Marriage Dissolution Institute - 1993, 1994 and 1997 State Bar of Texas Advanced Family Law Course - 1995 and 1999 Represented over 500 clients in family law cases Mediated over 150 Court ordered mediations AREAS OF PRACTICE Family Law Mediation Wills and Probate General Civil Practice PUBLICATIONS and PRESENTATIONS The Mediation News - Quarterly since 1996 Co-Mediation - Texas Association of Mediators Annual Conference, April 1994 Mediation - Pro Bono Family Law Training, DBA October 1996 Conservatorship - 24 Home Family Law Mediation Training, Spring 1997, Dallas Volunteer Attorney Program Marriage, Kids, and Money, Evaluating Your Family Law Case for Mediation , DBA 1999 SUZANNE MANN DUVALL * ATTORNEY-MEDIATOR 8235 DOUGLAS AVE., SUITE 330, LB-61 DALLAS, TEXAS 75225 (214) 361-0802 FAX (214) 368-7258 RESUME OF QUALIFICATIONS AND EXPERIENCE • Qualified under section 154.052 (a), (b) and (c) of the Texas Alternative Resolution Procedures Act to mediate cases in state and federal courts. • Over 600 hours of basic and advanced training in mediation, arbitration and negotiation through the State Bar of Texas, Dallas Bar Association, Harvard University Law School, CDR Associates, American Arbitration Association, Mediation and Arbitration Services, Inc., Dispute Resolution Services of Tarrant County, Inc., and East Texas State University, including over 24 hours in Family Dynamics, Child Development and Family Law and others. • Mediated more than 850 cases to resolution. (A partial list of references from attorneys who have mediated cases with Suzanne Mann Duvall is available upon request.) • Specializes in the resolution of civil disputes including family law, personal injury, real estate, employment, public policy, probate and related controversies. • Practiced civil trial law since 1970. Licensed in the state and federal courts in Texas (1977), California (1970), and in the United States Supreme Court (1981). • Faculty member and trainer for numerous dispute resolution and educational organizations, including Dispute Mediation Service, Dallas Bar Association, and the State Bar of Texas. Lecturer in Alternative Dispute Resolution, Texas Wesleyan University School of Law, SMU School of Law and Texas Woman’s University. • Frequent lecturer and panel member for alternative dispute resolution seminars. (A list of presentations is available upon request.) • Recipient: First Annual American Arbitration Association Steve Brutsche Award for Professional Excellence in Dispute Resolution; First Annual Tom Eisner Mediator of the Year Award given by Dispute Resolution Services of Tarrant County, Inc. for service to the courts and citizens of Tarrant County; Association of Attorney Mediators Pro Bono Service Award; Louis Weber Outstanding Mediator of the Year Award; Susanne C. Adams Award for Outstanding Commitment and Dedication to the Mediation Profession given by the Texas Association of Mediators. • Memberships: State Bar of Texas (Past-Chair, ADR Section); Dallas Bar Association (Past Chair, ADR Section); Association of Attorney-Mediators (Chair, North Texas Chapter); Texas Association of Mediators (Past President); Society of Professionals in Dispute Resolution; College of the State Bar of Texas; Pro Bono College of the State Bar of Texas; Fellow, Texas Bar Foundation; Fellow, Center for Public Policy Dispute Resolution, University of Texas School of Law; Supreme Court Advisory Committee on Court-Annexed Mediation.
Thomas Noble Attorney/CFP/Mediator
Law Offices of Thomas Noble, P.C. 5924 Royal Lane, Suite 152 Dallas, Texas 75230 (214) 692-1888 Fax: 692-8577 tnoble28@hotmail.com www.tnoble.com Education 1971 B.A., Washington University (St. Louis) 1980 J.D., Southern Methodist University 1989 CFP, College of Financial Planning 1991 Dallas Bar Association Mediation Training 1992 E.T.S.U. - 24 hours training in Family Mediation 1993 Co-Mediation Training (Dallas Bar Assn.) 1994 Advanced Negotiation and Mediation (CDR Associates) 1994-98 Marriage Dissolution Seminar (State Bar of Texas) 1994-98 Advanced Family Law (State Bar of Texas) 1994 Advanced Negotiation (State Bar of Texas) 1995 Advanced Family Mediation (DMS)
Advanced Mediation Training (AAM) Employment 1980-87 Shields, Blankenship, & Noble, P.C. 1987- Law Offices of Thomas Noble, P.C. Memberships and Affiliations
Publications and Presentations
Mediation Experience
Conducted 216 mediations (as of January 3, 2000)
Hobbies Chess, hiking, reading, yoga, meditation, and napping Not certified by the Texas Board of Legal Specialization 
Contact Me: tnoble28@hotmail.com Copyright © 2008 by Law Offices of Thomas Noble, P.C. All rights reserved. You may reproduce materials available at this site for your own personal use and for non-commercial distribution. All copies must include this copyright statement. | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
