Michelle May O'Neil : Published Cases
Michelle May O’Neil, lead family law appellate attorney
In the Interest of P.L.H., S.R.H., and C.H.H., 2010 WL 646944 (Tex. App. — El Paso 2010)
Wife appealed order granting ex-husband’s motion to modify child support. On appeal, The El Paso Court of Appeals affirmed trial court’s award of $32,000 to ex-husband in overpayment of child support.
In re Rosbottom, 2009 WL 1058747 (Tex. App. – Dallas, 2009).
Husband appealed ruling by Dallas County family court judge in a divorce lawsuit, which divested the community estate of assets it owned. Upon filing the appeal, wife agreed to withdraw the offending order and the trial court set it aside, rendering the mandamus proceeding moot.
Eberstein v. Hunter, 260 S.W.3d 626 (Tex.App.– Dallas 2008, no pet.).
Former wife brought suit in Dallas County to enforce divorce decree provisions and to recover money judgment for amounts owed under parties' agreement for contractual alimony. The Dallas County trial judge granted former wife's motion for summary judgment and awarded judgment in her favor on the unpaid alimony and awarded her a judgment for attorneys fees. Former husband appealed. The Dallas Court of Appeals upheld the summary judgment as to the award of unpaid alimony, finding the evidence sufficient to support the award. However, the court of appeals reversed the attorney’s fee award because the evidence provided by former wife’s lawyer was in sufficient.
In re S.C.S., 2008 WL 1973570 (Tex.App. – Dallas 2008, no pet.).
Mother filed suit in Dallas County family court to modify divorce decree and parents settled modification issues agreeably, with defined possession periods for Mother. Father denied Mother access on her specified period. Mother filed for writ of attachment to obtain possession, but father complied with the court order before the writ could issue. Father appealed. The court of appeals held that father’s lawyer failed to present his objections to the trial court and was, thus, precluded from raising new issues to the court of appeals. The court of appeals also upheld the trial court’s award of attorneys fees to mother and against father based on the testimony of mother’s attorney.
In re Mantooth, 2008 WL 1867935 (Tex.App. – Fort Worth 2008, orig. proceeding).
Father of children held in contempt and placed in jail for contempt of court based on failure to pay child support pursuant to a divorce decree out of Tarrant County family court. The Fort Worth court of appeals denied his request to be released from jail.
Kemble v. Kemble, 2008 WL 921471 (Tex.App. – Dallas 2008, no pet.).
Appeal taken by former husband of trial court’s judgment dividing the community estate in a Dallas County divorce proceeding. However, the case was dismissed in light of settlement between the parties and their lawyers.
In re Barnett, 2008 WL 820201 (Tex.App. – Fort Worth 2008, no pet.).
Mandamus dismissed as moot where depositions requested in pre-suit investigation of wife’s investigation of claim of fraud against husband in valuation of property division in Denton County divorce suit were found to be premature.
In re L.M.M., 247 S.W.3d 809 (Tex.App. – Dallas 2008, pet. denied).
After judgment was entered establishing a parent-child relationship between child and father, in which mother and father were named joint conservators, and mother was given exclusive right to determine child's primary residence, father petitioned to modify. Pursuant to mediation settlement agreement, the trial court entered order naming father joint managing conservator with exclusive right to determine child's primary residence and religious faith. Mother appealed. The Dallas court of appeals held that: (1) father was not required to file a separate suit for the enforcement of a contract in order to enforce the agreement, and (2) by signing the agreement, mother waived any constitutional right to determine her child's primary religious faith.
In re Dobbins, 247 S.W.3d 394 (Tex.App. – Dallas 2008), mandamus denied by Texas Supreme Court after briefing without opinion.
Office of the Attorney General filed motion to confirm more than $188,000 in child support arrearage. Former husband who was subject of the motion filed motion to dismiss on jurisdictional grounds. The Dallas County family court judge denied former husband's motion to dismiss. Former husband petitioned for mandamus relief. The Dallas Court of Appeals held that that divorce decree and child support order were entered in proceedings initiated upon unverified motion to reinstate did not render the judgment and order invalid. Thus, the court of appeals held that the divorce between the parties stands and the child support arrearage judgment could be enforced.
Wichman v. Wichman, 2008 WL 425830 (Tex.App.– Fort Worth 2008, no pet.).
In Tarrant County divorce proceedings, the trial court abused its discretion in dividing the community estate in a post-answer default judgment divorce case because the wife failed to present evidence of the community estate’s value. The Fort Worth Court of Appeals held that, although the trial court relied on a balance sheet presented by the ex-wife, outlining the community estate, the balance sheet could not be treated as constructively admitted evidence, because the ex-husband failed to show up for the final trial, and therefore both parties did not rely on the balance sheet as evidence.
Eberstein v. Eberstein, 2007 WL 416491 (Tex.App. – Dallas 2007, no pet.).
Summary judgment order in Dallas family law enforcement suit was not final in that it did not dispose of all claims and all parties, so appeal could not be taken.
In re Rowe, 182 S.W.3d 424 (Tex.App. – Eastland 2005, orig. proceeding).
Husband filed petition seeking issuance of writ of mandamus ordering trial court to set aside temporary orders and abate divorce proceedings initiated by wife in a county where she had not lived for the required 90-days. The court of appeals held that: (1) because plain language of residency statute required that wife must have been resident of county for 90 days at time she filed divorce suit in county, mere fact that time would pass during pendency of proceeding did not deprive husband of opportunity to appeal trial court's decision to deny his plea in abatement based on wrongful venue, and (2) husband had adequate remedy at law through appeal of trial court's allegedly wrongful venue determination.
Peck v. Peck, 172 S.W.3d 26 (Tex.App. – Dallas 2005, pet denied).
Husband appealed from decision of the Collin County family court judge in divorce suit which divided the parties' property and terminated the parties' marriage. The Dallas Court of Appeals held that: (1) husband judicially admitted at trial that disability policies were community property, and as such, he was barred from asserting otherwise; and (2) injunction restricting husband from having girlfriends spend the night during husband's visitation with child did not violate husband's constitutional right of substantive due process.
This case was featured in the August 1, 2005 edition of Texas Lawyer Magazine, “Morals Court? Justices OK Order Restricting Who Can Spend the Night at Divorced Parents’ Homes” by John Council.
In re Dettmer, 2005 WL 768406 (Tex.App. – Dallas 2005, orig. proceeding).
Mother of child challenged the Dallas county trial court’s authority to enter temporary orders awarding grandparents (parents of deceased father) temporary access to child. Court of appeals denied mandamus in favor of appeal after final judgment.
Harleaux v. Harleaux, 154 S.W.3d 925 (Tex.App. – Dallas 2005, no pet.).
Former husband filed motion for enforcement of divorce decree, alleging that former wife failed to perform certain obligations in divorce judgment as to sale of marital homestead. Following a hearing Dallas County trial court granted motion and later granted motion for sanctions, which requested that judgment awarding attorney fees be paid from homestead proceeds. Former wife appealed. The Dallas Court of Appeals held that: trial court could not order payment of former husband's laywer’s fees from proceeds of sale; trial court could not characterize award of attorney fees as a division of the homestead interest in marital homestead; and trial court could not convert judgment for attorney fees into a sanction and order it to be paid from proceeds of sale of homestead.
In Re Dupree, 118 S.W.3d 911 (Tex.App. – Dallas, 2003, pet. denied)(orig. proceeding).
Former wife brought suit to enforce divorce decree’s provisions for contractual alimony payments, seeking contempt and jail time. The Collin County trial judge found former husband in contempt and ordered his conditional confinement in jail, and subsequently revoked the suspension of confinement. Former husband petitioned for writ of habeas corpus to be released from jail. The Dallas Court of Appeals held that: (1) the divorce decree did not contain language ordering or commanding former husband to pay contractual alimony, and (2) the contractual alimony was a “debt,” for purposes of state constitutional prohibition of imprisonment for failure to comply with court order to pay a debt. Therefore, husband was released from confinement, leaving the contractual obligation enforceable as a contract only.
Smith v. Smith, 115 S.W.3d 303 (Tex.App. – Corpus Christi 2003, no pet.).
In divorce proceedings, the trial court granted former husband spousal maintenance award in divorce lawsuit. Former wife appealed. The court of appeals held that: (1) evidence was sufficient to support finding that husband was unable to support himself through appropriate employment; (2) evidence was sufficient to support finding that husband's needs were not met by community property division; (3) evidence was sufficient to support finding that husband met specific eligibility requirements regarding spousal maintenance awards to spouses with physical disabilities; and (4) evidence was sufficient to support finding of causal link between husband's disability and his inability to support himself.
Valley Forge Insurance Co. v. Austin, 65 S.W.3d 371 (Tex.App. – Dallas 2002).
In workers' compensation case, employer's workers' compensation carrier appealed from judgment entered by the Dallas County trial judge in favor of claimant and intervening Workers' Compensation Commission, holding that claimant's claim was not barred by election of remedies doctrine. The Dallas Court of Appeals held that claimant did not waive claim to workers' compensation benefits by pursuing group health insurance benefits.
Valley Forge Insurance Co. v. Austin, pet. denied, 105 S.W.3d 609 (Tex. 2003).
Workers’ compensation claimant’s benefits are not barred by election of remedies doctrine.
Saenz v. The Insurance Company for the State of Pennsylvania, 66 S.W.3d 444 (Tex.App. – Waco 2001, no pet.).
After exhausting administrative remedies, workers' compensation claimant brought action for benefits against employer and insurer. The trial court directed verdict for employer and insurer. Claimant appealed. The court of appeals held that: (1) whether employer had actual notice of claimant's injury within 30-day notice period was question for jury, and (2) whether claimant's injury arose out of employment was question for jury.
Gainesville Mem. Hosp. v. Tomlinson, 48 S.W.3d 511 (Tex.App. – Ft. Worth 2001, pet. denied).
Patient sued city hospital for injuries sustained when patient slipped from bed and fell to the floor. The trial judge denied hospital's plea to the jurisdiction. Hospital appealed. The court of appeals held that hospital did not waive sovereign immunity under tangible-property exception to sovereign immunity in Tort Claims Act.
In Re Aramark Corp., 38 S.W.3d 291 (Tex.App. – Tyler 2001, orig. proceeding).
Workers' compensation carrier filed petition for writ of mandamus seeking relief from trial court order denying plea to jurisdiction in injured employee's action seeking damages for injury, which employee alleged was result of fall that occurred after carrier failed to pay for walker needed as result of work-related injury. The court of appeals held that carrier had adequate remedy by appeal.
Dickens v. Willis, 957 S.W.2d 657 (Tex.App. – Austin 1997, no writ).
Divorced father filed motion to enforce mother's child support obligation. The judge denied motion, finding that earlier order clarifying child support obligation was void as a matter of law. Father appealed. The Court of Appeals held that: (1) evidence supported finding that error in original decree was clerical, and thus subsequent clarification did not amount to prohibited substantive change, and (2) clarification order could be used to correct clerical error.
Lemley v. Miller, 932 S.W.2d 284 (Tex.App. – Austin 1996, no writ).
Custodial parent sought to modify visitation provisions of final divorce decree that was originally filed in another state. Noncustodial parent made special appearance and challenged trial court's jurisdiction. The judge determined it lacked jurisdiction and dismissed motion. Custodial parent appealed. The court of appeals held that: (1) noncustodial parent's special appearance was properly verified, even though his attorney had filed affidavit; (2) Texas was child's home state, despite 11-month absence to foreign country; and (3) child and custodial parent had substantial connections to Texas to warrant jurisdiction.