Thursday, March 23, 2006

Don't Slip On the Temporary Order A"peel"

Chiquita is mad because at her temporary order hearing, her husband received temporary possession of the bowl of bananas she likes to wear on her head. Can she "appeel" the banana decision because she doesn't like how they were split? Well, if she had the temporary order hearing in front of an associate judge, (the "second banana" judge, if you will..)then she would be able to appeal the associate judge's ruling if she files the proper motion withing three days of the judge's rendering. However, if she have the temporary order hearing in front of the sitting, elected judge, then she cannot appeal because the judgement is "interlocutory" (not a final judgement). There is one exception- if the judge appointed a receiver to manage, protect, or dispose of the bowl of bananas, then she could appeal that to a higher court. (TRC 6.507).

Appealing temporary orders however, should not to be confused with a temporary order on appeal.


Temporary orders generally end when the final order is entered (unless the final order specifically says otherwise). However, if you are appealing a final order, the lower court retains jurisdictional power to render temporary orders while the appeal is pending to protect the parties and the property. These interim orders can even contain things that were not in the final order being appealed. These interim temporary orders are fully enforceable, even by contempt. (TFC 6.709(b) and 109/001(b)). That means even though a party is appealing the order, spousal support and child support must still be paid if they are in the interim temporary order.

One trick though. The interim temporary order must be rendered within 30 days after the appeal is perfected, or the court loses it's jurisdictional power over the case. (In re: Boyd, 34 S.W.3d 708 (Tex.App. --Fort Worth 2000).

Monday, March 20, 2006

Temporary Orders: The Pistol Packin Problem

If you are a card carrying member of the NRA, beware of Temporary Orders! Even if violence was never raised as an issue, if you carry a firearms under a domestic court order by any jurisdication (which a Texas temporary order is), you may be up against federal criminal sanctions. U.S. v. Emerson (270 F.3d 203 (5th Cir.2001).

Most judges are unaware of this, but I have seen some judges ask the parties if either of them own firearms before they grant temporary orders.

The constitutionality of domestic orders is really at issue. How the need for the stability of temporary orders in family law case measures against the fundamental right to bear arms of the second amendement to the constitution has yet to be decided. It seems that nobody really wants to knoch these two heads together by challenging it.

But this being Texas, we do love our shooting irons. So it is probably just a matter of time before this issue comes up before the Supreme Court.

See also: Child Abuse, Family Violence and Protective Orders

Sunday, March 05, 2006

A Quick Fix: Temporary Orders

Temporary orders are often necessary to keep the peace and sanity of parties going through a divorce. Ben Franklin, or some other wizzen old guy once said "good neighbors are made with strong fences" (or something like that) and that sentiment goes double in a divorce. A hearing must be had in front of a judge to rule on temporary orders. In Texas, the courts are supposed to set a hearing within 14 days of the request for one, but with the overcrowded courts being what they are nowadays, it is becoming rare that you can get a TO hearing that quickly. Temporary orders are the marching orders for the parties and they are put in place so that everybody knows what will be what until the divorce if final. The parties will be granted posession and access to certain property at the exclusion of the other party. The house, cars, personal effects, etc. will be awarded and the use of community funds may be restricted. Another useful temporary order that is often include is the requirement that both parties must file an inventory and appraisement of the property and other records that will help the parties value and divide the property when it comes time to finalize the divorce.