Litigation

Attorneys' Fees and Sanctions

An award of attorney's fees and sanctions is appropriate where the father frivolously files pleadings seeking custody, even though he does not wish to obtain custody and where the father seeks to schedule a hearing on a date that he knows the mother's lead counsel is unavailable. Martin v. Zieba, No. 03-03-00584-CV, Court of Appeals of Texas, Third District, Austin, April 29, 2004.

The mother moved to modify the relationship between the father and the subject child after she found entries in the child's diary containing descriptions of the child's misbehavior while visiting the father and his girlfriend. The father cross-moved for a modification of the parent-child relationship and also for custody. The district court awarded $35,000 in attorneys' fees for the mother's defense of the father's cross-motion affecting the parent-child relationship, $15,000 in sanctions because the father frivolously filed a pleading requesting custody of the child, and $2500 in sanctions for the father's discovery harassment by his attempt to schedule a discovery hearing on a date on which a continuance had already been granted. The father appealed, arguing that the district court should be reversed because it abused its discretion by awarding attorney's fees and sanctions. The appellate court affirmed. It held that the mother provided sufficient evidence so that the district court could award appropriate attorney's fees. She provided expert testimony, including the experience and expertise of her attorney and detailed billing records of the hours and rates of the lead and associate attorneys and other legal staff. The father did not dispute this testimony. Furthermore, it held that an award of $15,000 in sanctions was appropriate for the fees needed to defend against the father's frivolous custody pleadings. It considered that the father admitted that he filed a motion to modify the parent-child relationship in order to obtain a judicial interview with his daughter and that he did not intend to seek custody of the child. It further considered that the father's attorney informed the district court in a telephone conference that the father was not seeking custody, but failed to amend the motion for custody for over 2 months. Finally, the appellate court held that an award of $2500 for sanctions for discovery harassment was appropriate where the father attempted to reschedule a hearing on a day that he was aware the mother's lead counsel would be unavailable. The appellate court affirmed that such action was made specifically to harass the mother and sanctions were appropriate.

Alimony Rights in Bankruptcy

In Missouri, a debtor's maintenance payments do not become part of the bankruptcy estate because the right to alimony is a personal statutory right, not a property right. In re Vicki Ray Mitchem, No. 03-62954, United States Bankruptcy Court, W.D. Missouri, April 28, 2004.

The former wife filed for Chapter 7 bankruptcy and claimed as exempt monthly maintenance payments made to her by the former husband. The trustee objected, arguing that Missouri only allows an exemption for maintenance up to the sum of $500 per month. The bankruptcy court disagreed and held that a debtor's maintenance payments do not enter into the bankruptcy estate because the right to alimony is a personal statutory right, not a property right. The right to receive maintenance is a right to income in the future and arises each month as the payment becomes due.

Wages and Child Support in Bankruptcy

Monies derived from income are no longer exempt from the bankruptcy estate once they pass to the employee; monies derived from child support are exempt only if they are paid by a former spouse through a court order, and not between parties that are still married. In re Palidora, No. 2-03-15494-PHX-RJH, United States Bankruptcy Court, D. Arizona, May 24, 2004.

The Palidoras filed for Chapter 7 bankruptcy. The trustee moved for turnover of the Paladoras joint bank account (less a statutory $300) and the Palidoras objected, arguing that the monies in the joint bank account were derived from income and child support. The court held that regarding the monies derived from income, Arizona law exempting 75% of the debtor's disposable earnings ceases to apply upon the debtor's receipt of those wages, whether paid in cash, by check, or by direct deposit in the debtor's bank account. The court held the wage exemption statute only limits what a creditor could obtain by garnishment of the employer, not what could be attached in the hands of the debtor. Once earnings have been transferred to the debtor/employee, the monies become exempt. Regarding the child support monies, any child support paid pursuant to court order by a former spouse would be exempt, but child support monies paid between spouses that were still married would be nonexempt from the bankruptcy estate.

Child Support Modification

A child support agreement that fails to include statutory language will be found invalid; child support will only be recalculated from the date the payee spouse seeks modification, and the most recent available financial circumstances of the parties will be applied. Luisi v. Luisi, Index No. 6838/92, Supreme Court of New York, Appellate Division, Second Department, April 5, 2004.

The parties were divorced in 1992 and signed a second child support agreement in 1996. In 2001, the wife filed a motion to recalculate child support from 1992 through 2001 and for an upward modification of child support because of a change of circumstances. The appellate court denied the wife's motion for a recalculation of child support from 1992, but remanded the matter to the trial court for a recalculation of child support from 2001 through the present. It held that the child support agreements entered into by the parties in 1992 and 1996 were invalid because they did not contain the required New York statutory language. However, the appellate court held that the lower court should have made a new child support order consistent with New York law, and only retroactive to the date the wife filed the motion in 2001 (not the date of the parties' divorce). Moreover, the appellate court noted that the lower court should rely on the parties' 2001 tax returns in making the child support determination and not the parties' financial circumstances in 1996 when the parties' second child support agreement was made. Finally, the appellate court did not address the issue of upward modification of child support because it directed the lower court to apply the parties' financial circumstances as of 2001.

Attorneys' Fees and Sanctions

An award of attorney's fees and sanctions is appropriate where the father frivolously files pleadings seeking custody, even though he does not wish to obtain custody and where the father seeks to schedule a hearing on a date that he knows the mother's lead counsel is unavailable. Martin v. Zieba, No. 03-03-00584-CV, Court of Appeals of Texas, Third District, Austin, April 29, 2004.

The mother moved to modify the relationship between the father and the subject child after she found entries in the child's diary containing descriptions of the child's misbehavior while visiting the father and his girlfriend. The father cross-moved for a modification of the parent-child relationship and also for custody. The district court awarded $35,000 in attorneys' fees for the mother's defense of the father's cross-motion affecting the parent-child relationship, $15,000 in sanctions because the father frivolously filed a pleading requesting custody of the child, and $2500 in sanctions for the father's discovery harassment by his attempt to schedule a discovery hearing on a date on which a continuance had already been granted. The father appealed, arguing that the district court should be reversed because it abused its discretion by awarding attorney's fees and sanctions. The appellate court affirmed. It held that the mother provided sufficient evidence so that the district court could award appropriate attorney's fees. She provided expert testimony, including the experience and expertise of her attorney and detailed billing records of the hours and rates of the lead and associate attorneys and other legal staff. The father did not dispute this testimony. Furthermore, it held that an award of $15,000 in sanctions was appropriate for the fees needed to defend against the father's frivolous custody pleadings. It considered that the father admitted that he filed a motion to modify the parent-child relationship in order to obtain a judicial interview with his daughter and that he did not intend to seek custody of the child. It further considered that the father's attorney informed the district court in a telephone conference that the father was not seeking custody, but failed to amend the motion for custody for over 2 months. Finally, the appellate court held that an award of $2500 for sanctions for discovery harassment was appropriate where the father attempted to reschedule a hearing on a day that he was aware the mother's lead counsel would be unavailable. The appellate court affirmed that such action was made specifically to harass the mother and sanctions were appropriate.

Alimony Rights in Bankruptcy

In Missouri, a debtor's maintenance payments do not become part of the bankruptcy estate because the right to alimony is a personal statutory right, not a property right. In re Vicki Ray Mitchem, No. 03-62954, United States Bankruptcy Court, W.D. Missouri, April 28, 2004.

The former wife filed for Chapter 7 bankruptcy and claimed as exempt monthly maintenance payments made to her by the former husband. The trustee objected, arguing that Missouri only allows an exemption for maintenance up to the sum of $500 per month. The bankruptcy court disagreed and held that a debtor's maintenance payments do not enter into the bankruptcy estate because the right to alimony is a personal statutory right, not a property right. The right to receive maintenance is a right to income in the future and arises each month as the payment becomes due.

Wages and Child Support in Bankruptcy

Monies derived from income are no longer exempt from the bankruptcy estate once they pass to the employee; monies derived from child support are exempt only if they are paid by a former spouse through a court order, and not between parties that are still married. In re Palidora, No. 2-03-15494-PHX-RJH, United States Bankruptcy Court, D. Arizona, May 24, 2004.

The Palidoras filed for Chapter 7 bankruptcy. The trustee moved for turnover of the Paladoras joint bank account (less a statutory $300) and the Palidoras objected, arguing that the monies in the joint bank account were derived from income and child support. The court held that regarding the monies derived from income, Arizona law exempting 75% of the debtor's disposable earnings ceases to apply upon the debtor's receipt of those wages, whether paid in cash, by check, or by direct deposit in the debtor's bank account. The court held the wage exemption statute only limits what a creditor could obtain by garnishment of the employer, not what could be attached in the hands of the debtor. Once earnings have been transferred to the debtor/employee, the monies become exempt. Regarding the child support monies, any child support paid pursuant to court order by a former spouse would be exempt, but child support monies paid between spouses that were still married would be nonexempt from the bankruptcy estate.