FAMILY LAW APPEALS AND ACCELERATED APPEALS

FAMILY LAW APPEALSAND WHAT MAKES THEMDIFFERENT FROM OTHER

CIVIL APPEALS

CHILD SUPPORT FOF AND COLWHEN DO YOU REQUEST?

TFC 154.130(a): w/o regard to TRCP 296-299, in rendering an order of CS, the TC shall make findings of fact if a party files a written request with the court not

later than ten days after the date of the hearing, a party makes an oral request in open court

during the hearing, or the amount of CS ordered by the court varies

from the amount computed by applying the percentage guidelines.

TFC 154.130(a-1): TC has 15 days to file after request made.

CHILD SUPPORT FOF AND COLWHAT DO YOU GET?

If findings required by TFC 154.130, TC shall state whether application of guidelines would be unjust or inappropriate & shall state in CS order:  the monthly net resources of the obligor per month are

$____; the monthly net resources of the obligee per month are

$____; the percentage applied to the obligor’s net resources for

child support by the actual order rendered by the court is ____%;

the amount of CS if percentage guidelines are applied to the first $6000 of the obligor’s net resources is $____;

if applicable, specific reasons amount of CS per month ordered by TC varies from the amount stated in (4) are _______________________; and

if applicable, obligor obligated to support children in more than 1 household.

POSSESSION FOF AND COLWHEN DO YOU REQUEST?

W/o regard to TRCP 296 through 299, in all cases in which possession of child by a parent is contested & posses sion of the child varies from SPO, on written request made or filed with the court not later than 10 days after date of hearing or on oral request made in open court during the hearing, TC shall state in the order the specific rea sons for the variance from the standard order. Tex. Fam. Code § 153.258.

MARITAL ESTATE FOF AND COL

TRCP 296-299 apply. If FOF and COL are requested pursuant to

TFC 6.711(a), the TC must make the following FOF and COL: characterization of each party’s assets, liabilities,

claims, and offsets on which disputed evidence has been presented; and

the value or amount of the community estate’s assets, liabilities, claims, and offsets on which disputed evidence has been presented.

Should also specifically request findings on the value of a party’s separate estate.

ENFORCING JUDGMENTPENDING APPEAL

Property division: TFC 9.007(c) states: “The power of the court to render further orders to assist in the implementation of or to clarify the property division is abated while an appellate proceeding is pending.”

Child Support and Spousal Support: In re Sheshtawy, 154 S.W.3d 114 (Tex. 2004), supports a conclusion that suit for enforcement by contempt may be pursued during the pendency of an appeal.

SUSPENDING JUDGMENT PENDING APPEAL OF SAPCR

TFC 109.002(c) and TRAP 24.2(a)(4) authorize COA to suspend, during pendency of appeal, enforcement of a final order in a SAPCR upon a “proper showing.”

The requirement of a “proper showing” obligates moving party to demonstrate TC clearly abused its discretion in refusing to suspend its judgment on presentation of essentially the same matters offered to COA.

TEMPORARY ORDERS PENDING APPEAL—DIVORCE TFC 6.709

Not later than 30th day after NOA filed, on TC’s or party’s motion & after notice & hearing, TC may render TOs for preservation of property & for protection of parties during appeal.

In addition to other matters, an order may: require support of either spouse, require payment of reasonable attorney’s fees &

expenses, appoint a receiver for the preservation & protection of

parties’ property, or award one spouse exclusive occupancy of parties’

residence pending the appeal. TC retains jurisdiction to enforce orders unless COA,

on proper showing, supersedes TC’s orders. TOs must be signed w/in 30 days of filing of NOA.

TEMPORARY ORDERS PENDING APPEAL

—SAPCR TFC 109.001 W/in 30 days after NOA filed, on TC’s or party’s motion & after

notice & hearing, TC may render TOs necessary to preserve and protect safety and welfare of child during pendency of appeal.

In addition to other matters, an order may: Appt. temp. conservators and provide for possession, require temporary CS by a party, restrain a party from molesting or disturbing peace of child or

another party, prohibit a person from removing child beyond a geographical area

identified by court, require payment of reasonable attorney’s fees and expenses, or suspend the operation of the order or judgment that is being

appealed (except an order or judgment terminating the parent-child relationship in a suit brought by certain governmental agencies).

TC retains jurisdiction to enforce orders unless COA, on a proper showing, supersedes TC’s order.

TOs must be signed w/in 30 days of filing of NOA.

ACCELERATED APPEALS

TRAP 28.1Mandatory

Interlocutory Appeals

Preference in the Interest of Justice

MANDATORY Appeals involving the termination of

the parent-child relationship.

Appeals involving final orders rendered under chapter 263, placement of children under the care of TDFPS.

Appeals of cases involving the UCCJEA.

Interlocutory orders

INTERLOCUTORYCPRC 51.014

appoint or deny a request for a receiver or trustee; certify or deny certification of a class action suit; grant or deny a temporary injunction; deny a motion for summary judgment that is based

on an assertion of immunity by a government official;

grant or deny a defendant’s special appearance—except in a suit brought under the Family Code;

INTERLOCUTORY (CONTD.)

grant or deny a plea to the jurisdiction by a governmental unit;

deny a defendant healthcare worker’s request to dismiss where an expert report has not been timely filed;

grant a motion challenging the adequacy of an expert report in a medical malpractice case; and

deny a motion to dismiss where an expert report has not been timely filed in an asbestos liability case.

INTERLOCUTORY (CONTD.)

Agreed interlocutory appeal allowed if: the parties agree that the order sought to be

appealed involves a controlling question of law as to which there is a substantial ground for difference of opinion;

an immediate appeal from the order may materially advance the ultimate termination of the litigation; and

the parties agree to the order. Agreed interlocutory appeals not

available if suit filed under the Family Code.

INTERLOCUTORY (CONTD.)

Additionally an interlocutory appeal is available:for an order that denies the intervention or

joinder of parties, (Tex. Civ. Prac. & Rem. Code § 15.003), and

for a denial of a motion to compel arbitration under the Texas Arbitration Act. Tex. Civ. Prac. & Rem. Code Ann. § 171.098(a).

IN THE INTERESTOF JUSTICE

Justice demands a speedy resolution of child custody and child support issues. See Proffer v. Yates.

The Family Code also recognizes that, in cases involving children, if ordinary scheduling practices will unreasonably affect the best interest of the children, the case should be given a preferential setting. See Tex. Fam. Code § 105.004.

Motion needed to pursue.

PERFECTION OF ANACCELERATED APPEAL

NOA must be filed w/in 20 days after judgment or order appealed from is signed. Tex. R. App. 26.1(b).

COA may extend time to file NOA, if, w/in 15 days after the deadline for filing NOA, appellant: (1) files a proper motion to extend time

complying with Rule 10.5(b), and (2) a NOA. Tex. R. App. P. 26.3.

PERFECTION OF ANACCELERATED APPEAL (CONTD.)

Unlike an ordinary appeal, the filing of a MNT, any other post-trial motion, or a request for FOF will not extend the time to file a timely notice of an accelerated appeal.

However, such actions still extend the plenary power of TC and, if a modified judgment is signed, a notice of accelerated may be filed within 20 days of the signing of that judgment.

PERFECTION OF ANACCELERATED APPEAL (CONTD.)

Fact that appeal from final judgment is accelerated has no bearing on the procedures for requesting and filing FOF and COL.

In an appeal from an interlocutory order, TC may file FOF and COL, but is not required to do so.

FOF and COL filed in conjunction with an order on interlocutory appeal may be “helpful” in determining if TC exercised its discretion in a reasonable and principled fashion.

H/ever, they do not carry same weight on appeal as FOF made under TRCP 296, & are not binding when COA reviews TC’s exercise of discretion.

THE APPELLATE RECORD

Consists of CR and, if necessary, RR. In lieu of CR, COA may hear an accelerated

appeal on the original papers forwarded by TC or on sworn & uncontroverted copies of those papers.

Record must be filed within 10 days of NOA. TC and COA are jointly responsible for

ensuring that appellate record timely filed.

BRIEFING

Appellant’s brief due 20 days after CR or RR is filed, whichever is later.

Appellee’s brief due w/in 20 days after appellant files its brief or w/in 20 days after appellant’s brief was due.

Appellant’s reply brief due w/in 20 days of filing of appellee’s brief.

COA may either extend or shorten time for filing of briefs.

COA may allow case to be submitted w/out briefs

APPEALS FROM PARENTAL TERMINATION ORDERS AND CHILD PROTECTION CASES

Appellant no longer required to file a statement of appellate points with TC, and TC no longer required to determine whether appeal would be frivolous.

In 2011, Legislature directed TXSCT to adopt rules re: accelerating appeals of parental termination orders.

New rules effective Spring 2012.

NEW RULES

FOF and COL Rule 299b--reduces maximum length of time for

obtaining FOF and COL from a maximum of 80 days to a maximum of 45 days.

Rule 299b(a)—requires TC to automatically file, at time judgment is signed and in a document separate from judgment, written FOF and COL. If TC fails to do so, any party may w/in 10 days file notice of past due FOF and COL, which extends deadline to file FOF and COL until 20th day after judgment signed. If TC still fails to file FOF and COL, any party may, after NOA filed, file motion w/ COA for an order directing TC to do so. Once FOF and COL are filed, any party may w/in 5 days file request for specified additional or amended FOF and COL, which are due within 10 days of when they are requested.

NEW RULES (CONTD.)

Perfection of AppealFile NOA w/in 20 days of signing of judgment

Appellate Record TC has duty to direct court reporter to prepare RR. Reporter will have 30 days to file record and may

only get one extension of up to 30 days. If CR not timely filed and delay resulted from

appellant’s failure to pays costs and appellant not entitled to a free record, COA must dismiss appeal absent extraordinary circumstances.

if CR filed, but RR not filed w/in 90 days after NOA filed, as a result of appellant’s failure to request or pay for RR, then after giving appellant opportunity to cure, COA “shall” decide appeal based on CR alone.

NEW RULES (CONTD.)

Briefing Standard rules for accelerated appeals apply

to the filing of briefs in appeals from termination cases and child protection cases with 2 exceptions Rule 28.4(d) requires party seeking an

extension to show good cause, not just a reasonable explanation; and

Rule 28.4(d)(1) limits extensions of deadline to file a brief not exceed 40 days cumulatively, absent extraordinary circumstances.

NEW RULES (CONTD.)

Motions for Rehearing/Reconsideration in the termination case or child protection

context, extensions of time to file such motions cannot exceed 30 days cumulatively, absent extraordinary circumstances.

If a motion for rehearing or motion for rehearing en banc is timely filed, COA required to rule on it w/in 60 days of when it is filed. If no ruling is issued by then, the motion would be overruled by operation of law on the 61st day after it was filed.

NEW RULES (CONTD.)

Petitions for Review Under rule 28.4(g), absent extraordinary

circumstances, a party may not file a motion to extend the time for filing a PFR.

If PFR timely filed, supreme court would be required to rule on it within 120 days, or the petition would be overruled by operation of law on the 121st day.