What happens if one spouse has contributed to the other spouse’s separate property? What happens if one spouse has paid the mortgage on a separate property home during the marriage only to realize the spouse who owned the home prior to marriage gets all the benefit? This article is going to discuss one of those claims: a claim for reimbursement.Read More
A Standard Possession Order is probably the most common child custody orders in Texas. This article discusses the details of a Standard Possession Order to help you better understand if an SPO is a good fit for your case.Read More
In Texas, there are two primary categories property falls into when going through a divorce. Those two categories are Community Property and Separate Property. These distinctions are incredibly important to the court when determining how to divide property during a divorce.Read More
I've started a YouTube Channel specifically for the purposes of answering your legal questions. All you have to do is send in your question to my email address at JMoon@MoonLawFirm.com. If it's one of the questions to be chosen, I will answer it in next week's episode and offer you a free one hour office consultation.
As always, these videos are intended to be for general information and education. They are NOT a replacement or a substitute for licensed legal counsel. If you have a case pending, you need a lawyer dedicated to the specific facts and applicable law of your case. If you are in urgent need of representation, please feel free to contact us at 713-999-9398 or JMoon@MoonLawFirm.com. Thanks and enjoy!
This article discusses the 7 things you need to know about divorce from a business owner’s standpoint.Read More
Going through a divorce can be one of the most difficult things a person does. It is mentally and emotionally exhausting. Your life is being changed completely and in every way. Divorce is hard because it touches on every aspect of life. Your children, your relationships, your finances, etc. There’s quite a bit to learn before you go through the process.Read More
This week I’m continuing a series of posts regarding the potential remedies one might have if they find themselves in a situation where the other parent of their child refuses to abide by a current court order. This week’s post will be on enforcement by contempt. (As usual, this post is not intended to be a substitute for legal advice. Your situation is unique and requires individualized legal advice. Please contact an attorney to discuss your case. This article is intended to be general information on the subject.)
It’s a phrase that’s familiar to anyone who has ever watched any type of courtroom drama, “I hold you in contempt!” In the broadest sense contempt simply means that you are not following the direction or order of the court. What does this phrase really mean in the context of a family law case?
A court may enforce by contempt a final order for possession of and access to a child. Tex. Fam. Code Ann. § 157.001(a), (b). The court has the authority to hold a person in contempt for failing to abide by the current orders in a family law case. In order for a court to hold an individual in contempt, a motion for enforcement must be filed in the court of continuing, exclusive jurisdiction. Tex. Fam. Code Ann. § 157.001(d). The court of continuing, exclusive jurisdiction is usually the court that rendered and entered the order you are trying to enforce.
Like most enforcement situations, my advice is to first check the underlying order to determine the exact nature of the violation and the provision of the order being violated. The underlying order sought to be enforced by contempt must set out the details of each obligation in clear, specific and unambiguous terms, and the order must not rest upon implication or conjecture or be uncertain or susceptible to different meanings. Ex parte Slavin, 412 S.W.2d 43 (Tex. 1967). If the order is vague or ambiguous, the order may be clarified so as to be enforceable by contempt, Tex. Fam. Code Ann. § 157.421. The request for clarification may be made before a motion for contempt is filed, in conjunction with a motion for contempt, or after the denial of contempt. Tex. Fam. Code Ann. § 157.424.
Once the motion has been filed, the court must set the date, time, and place of the hearing and order the respondent to personally appear and respond to the motion. Tex. Fam. Code Ann. § 157.061(a). The other parent must also receive adequate notice of the date of the hearing. Tex. Fam. Code Ann. § 157.062(a), (b).
Assuming that you are successful in your request to have a court enforce an order by contempt, the court will issue an enforcement order. An enforcement order must include in ordinary and concise language the provisions of the order for which enforcement was requested, the acts or omissions that are the subject of the order, the manner of the respondent's noncompliance and the relief granted by the court. Tex. Fam. Code Ann. § 157.166(a).
The court may also impose incarceration or a fine for criminal contempt. If the order imposes such a penalty, an enforcement order must contain findings identifying the provisions of the order for which enforcement was requested and the date of each occasion when the respondent's failure to comply with the order was found to constitute criminal contempt. Tex. Fam. Code Ann. § 157.166(b). If the enforcement order imposes incarceration for civil contempt, the order must state the specific conditions on which the respondent may be released from confinement. Tex. Fam. Code Ann. § 157.166(c).
Contempt is a powerful tool at the disposal of anyone who is the victim of another party who is not following the orders of the court. In the context of a family law case, contempt is the likely remedy for all manner of violations of the court’s order. If you have any questions or comments regarding contempt or family law case, please feel free to contact us.
Most people have done something that they are not too proud of at one time or another. All of us have those moments we would rather forget forever. Now, however, those moments may be immortalized forever in the pages of social networking sites such as Facebook, Instagram, Twitter and others. Usually these indiscretions are laughed about and then removed from the web. However, they take on a different significance when one is in the middle of a lawsuit. What if you are in the process of going through a divorce, lawsuit or criminal suit? Can social media be used in your case?
The answer to this question, like so many other legal questions, is that it depends. While information on social media websites may contain embarrassing, obscene or even incriminating information, the challenge is getting that evidence admitted in a court of law. Assuming the party admits to the posting, photo, etc. the information can be used as an admission of that party under Texas Rule of Evidence 801(e)2. However, this article will primarily deal with the process of authenticating and admitting this information at trial.
If a party denies that the information another party is attempting to use is genuine, that information will need to be authenticated before being admitted. Authenticating evidence is discussed by Texas Rule of evidence 901. Rule 901 states that, “The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.” Texas Rule of evidence 901.
In layman’s terminology, this means that an item of evidence can be authenticated by other information that proves the item is what the person attempting to use it claims it is. For example, an exhibit can be authenticated by testimony of a witness with knowledge of what the exhibit is, comparisons by expert witnesses, distinctive characteristics of the exhibit, or other similar means. Texas Rule of evidence 901(b) 1, 3, and 4. Using this type of evidence against a party is a two step process. The first step is to establish that the printout from the social media website is an authentic representation of that website. The second step is to link the authentic information to the opposing party.
Authenticating information from a social media site means proving that the information in the computer printout is a fair and accurate representation of the information on the website itself. This may be able to be satisfied by the person who printed the social media information testifying that the witness printed the exhibit; the witness is familiar with the computer and printer used to print the exhibit; and the exhibit accurately depicts the web site as it appeared on that day. Texas Rule of Evidence Rule 1001(a), (c) & (d). The witness does not need to be the author of the website, but rather can testify to the fact that the pages printed from the website are accurate. Id.
Once the information has been deemed to be authentic, the party attempting to use the information must establish that the opposing party is the author of that information. One way to link the opposing party to the information may be to establish that the post or print out contains distinctive characteristics that can be linked to the author. Texas Rule of Evidence 901(b)(4).
Some of these “distinctive characteristics” include the return–address line of an email or instant message, the date and time of the correspondence, the subject line, the contents and context, internal characteristics such as known speaking or grammatical usage, nicknames or specialized terms, or any other circumstances, such as conversations or events either before or after the e–mail or instant message that tend to make it more likely that this message came from a certain person. See Shea v. State, 167 S.W.3d 98, 104–105 (Tex. App. – Waco 2005, pet. ref'd).
Similarly, the connection between a particular chat–room posting and a specific person can be established by the following: 1) the screen name can be traced to the identified person, who has previously used this specific screen name in chat–room conversations; 2) the identified person responded to a request for a meeting with the person using a specific screen name, 3) the person using the screen name identified himself as "X" and that self–identification is coupled with other particularized information that applies to X, such as a street address, e–mail address, job, or personal description, 4) the identified person had information given to the chat–room participant using the specific screen name, or 5) search of the identified persona's computer hard drive shows that the user of that computer used the same screen name as the chat–room participant. See United States v. Tank, 200 F.3d 627, 630–31 (9th Cir. 2000).
Just as e–mails, instant messages, and chat room sessions can be linked to particular individuals by witnesses with sufficient circumstantial evidence to make the link, postings on social websites should also be subject to this same method of authentication.
There’s an old saying that “If you don’t want people to know you've done something, don’t do it in the first place.” This old adage remains true in the digital age as well. Be cautious of what you post to your social media pages because that information can be used against you in court. Additionally, information on social networking sites can be useful information in your lawsuit so it pays to have print outs and be able to authenticate those printouts.
Attached to this blog post is a basic outline of what to expect during a family lawsuit. It answers most general questions but don't hesitate to ask me a more specific question if you have one. I look forward to hearing from you.