1.   HAVE THE CLIENT TAKE AN INVENTORY FORM WITH THEM AFTER YOUR FIRST MEETING

 

      When meeting with clients in all but the most mundane cases, it is important that you get a firm idea of what assets exist and a working early knowledge of what are the likely issues.  Valuation of assets also needs to be understood by the client and addressed by the attorney at the earliest occasion.  Lastly, at the initial phase of the case is an excellent opportunity to find out from the client what his or her idea of a fair settlement would be.  By broaching the subject you may make some remarkable discoveries yourself.  For instance, you may discover your client has absolutely no idea what property is owned by the community.  You may discover there is already in the works a possible settlement that would be quite beneficial to your client.  You may be able to ascertain how reasonable or unreasonable your client is going to be which can help you set your fee.  And you may discover your client is ignorant of or unwilling to acknowledge separate property aspects of the case.  By having the client fill out a short-form inventory similar to the one here attached (Form 1), you are much less likely to overlook or underestimate significant assets when the case is resolved.  This practice also has the added advantage of making your client come to grips with the property issues early on, a distinct aid when you get to the more difficult discovery tracing and characterization problems that often plague the case.  It also forces your client early on to go find the account numbers, titles, and other identifying information before they disappear or change.  From the initial inventory you should then make your preliminary entries on the spread sheet that will be used in your presentation to the court (Form 2.)  You will have the added advantage of having most of the information necessary to prepare your formal inventory in the case.  At this initial stage of the case much of your interaction with your client will be an effort on your part to educate your client about the procedures in place to evaluate, authenticate, and marshal the assets of the marriage for a division that is favorable to your client.  Make your client understand that the final inventory is the roadmap for the case, and it is imperative that you know at the outset what is out there.  Keep them, however, from dwelling incessantly on listing the pots and pans, firearms, and furniture as these generally have a way of working themselves out.

      In many cases, having the preliminary inventory will let you talk with opposing counsel and perhaps even settle the case without a formal inventory.  However, if the case is going to be tried, the careful attorney will prepare and file a formal inventory.  A formal inventory has these characteristics:

 

            a.   Matters included:

 

            Each item contained on the inventory will have the following characteristic elements to address:

 

                  (1)  identification of the asset/ debt/ claim

                  (2)  characterization of the asset/ debt/ claim

                  (3)  value of the asset/ debt/ claim

 

            b.   Assets

 

      The more comprehensive and specific your inventory, the more useful the document is throughout the case, from settlement negotiations, mediation, and final trial.  Legal descriptions of real property, proper names of retirement benefit plans, account numbers, and so on, should be included.  Set forth the calculations pertaining to separate versus community property percentages of assets with community/separate components.

 

            c.   Debts

 

      List each liability, with its amount, the number of periodic payments in arrears, if any, the property securing its payment, and the name of the creditor.

 

      d.   Claims

 

      (1)  reimbursement

 

      If there is a claim that the community estate should be reimbursed, the inventory should reflect that claim as a community asset.  If there is a claim that one’s separate property estate should be reimbursed, indicate the value of that claims as a separate property asset and a community estate liability.

 

      (2)  equitable lien claims

 

      Be certain to include all claims for reimbursement that are subject to the equitable reimbursement lien statute.

 

      (3)  fraud and other tort claims

 

      Particular care should be exercised to insure that interspousal claims are reflected on the inventory.  Failure to include them may prejudice the prosecution of the claim.  With respect to these “assets”, the practitioner will be faced with the issue of quantifying the amount of the claim.

 

      (4)  separate property

 

      In addition to value, indicate and explain how you arrived at your characterization, for example, whether the asset was a gift, inherited, or owned prior to marriage, or how it is traceable thereto.

 

      (5)  contingent claims

 

      Your inventory should correspond with the claims set forth in your pleadings.  It may be important to list a pending personal injury suit for example, and state the amount of the damages being sought as the estimated value of such claim.  If advantageous to your client’s position, segregate the various components of the claim, for example, segregate the value attributable to pain and suffering, future medical expense, and loss of future earnings which are separate property from past medical expenses and loss of earnings in the past.  See sec. 5.01 and 5.02 Tex. Fam. Code.  See also Huls v. Huls, 616 S.W. 2d 312, 315-36 (Tex.Civ.App.—Houston {1^st Dist.] 1981, no writ).

 

      e.   Value

 

      In determining values, one should keep in mind the ultimate standard which will be utilized at trial.  “The value of an asset is its market value unless it has no market value.”  “Market value” means the amount that would be paid in cash by a willing buyer who desires to buy, but is not required to buy, to a willing seller who desires to sell, but is under no necessity of selling.  If an asset has not market value, its value is the value of its current ownership as determined from the evidence.”  Texas Pattern Jury Charge 203.1, Supp. 1996.

      The inventory should include values for all items listed, even though the value may be an estimate.  When the value is likely to change, indicate that the value assigned is as of a certain date and subject to change.  Some temporary orders contain language which prevent the person filing an inventory from indicating “unknown” or “undetermined” in lieu of stating an estimated present fair market value or the amount of any secured or unsecured debt, except for good cause expressly stated on the inventory.

 

      f.    Sworn to by the Party, With Reservation

 

      The party must swear to the accuracy of the inventory based upon the information available to and within the personal knowledge of the party.  Always make sure that the opposing party’s inventory is sworn.  Explicitly reserve the right to amend and change your inventory.

 

2.   DISCUSS THE DISCOVERY PROCESS WITH YOUR CLIENT AND LET THEM KNOW WHAT THEY ARE IN FOR

 

      Following a temporary hearing or agreed orders, the first major undertaking involving the client in your case will undoubtedly be the day you get the volumes of discovery requests from the other side.  Because most attorneys attempt to avoid having to seek additional time for their responses, the day the discovery requests come in is the day they should be sent to the client (Form 3) and a follow up meeting set.  If he or she is unprepared for the work involved in responding to discovery, you will undoubtedly run the risk of the client being overwhelmed, or angry, or both.  “What am I paying you to do if I have to gather all this?”  “I don’t have any of the items.”  “It’s too hard for me to get them.”  “Do I really need to have it?” are common statements.  Therefore, as one of the top ten things you can do, at the outset, explain document production, expert witnesses, tracing, characterization, valuation, and what you are likely to ask for and what you are likely to be asked for.

      Also be certain to go over the time constraints, the reasons for them, and the importance of accuracy.  Explain the next steps in discovery – possible motions to compel; discovery subpoenas; and depositions.  Give the client an idea about how long these matters can take to avoid dissatisfaction, accusations, and misunderstanding as the case proceeds.

      Assign someone in your office to be completely responsible in each case for seeing to it the discovery responses are timely file, in due form, and have accurate and appropriate objections when applicable.  Remember you can not longer have blanket objections to every matter under the sun – to do so opens you to sanctions for discovery abuse.

 

3.   SEND DISCOVERY WITH YOUR PLEADINGS

 

      Send discovery with your initial pleadings or as soon thereafter as possible.

      If you are the Petitioner, 99% of the time you will know the category of most of the documents you want, and many of the questions that need answering.  Why not send the discovery from the beginning so as to cut down on the down time getting your case going.  The rules provide that discovery documents requested must be provided within 50 days of service on the pleading.  Of course, 30 days is the period if you are Respondent and serve opposing counsel.  Since the primary area of need is generally getting your hands on the documents you need to prove your case, to defeat your opponent, or adequately advise your client, this paper will concentrate on how, where, what documents you can obtain by way of Requests for Production, deposition notices, and discovery subpoenas.

 

            a.   Requests for Production 

            (Subpoenas, Deposition Notices, and Requests for Production)

 

      (1)  Incorporation of All Rules For Production

 

      The production of documents is a prime function of the discovery process.  Document production is provided for by several different methods within the rules of discovery, including subpoenas, deposition notices, and document production requests to parties and nonparties.  The new rules of discovery have incorporated all of these methods into each other.  Thus, when requesting documents through a subpoena for documents, the requesting party must comply with the production requirements set forth under the sections applying to deposition notices and requests for production (to parties and nonparties) as well. This incorporation of all rules is discussed elsewhere in this presentation. 

      Because the different types of methods to request production are very similar, yet different in some ways, it is difficult to avoid being redundant when addressing all of the available options for production requests, yet all of them require a separate form in one way or another.  We have made our best attempt at dodging this problem by addressing the actual form for the documents to be requested separately, as this form can be attached or incorporated, in part or in full, to any type of request for production.  The methods available for requesting production are each addressed separately thereafter, but you must keep in mind that the rules contained in each method apply to the other.

 

      (2)  List of Documents Requested

 

      The most important part of the Request for Production and Inspection of Documents, Subpoena Duces Tecum, and Deposition Notice, for purposes of this paper, is the complete list of all of the documents being requested.  Other requirements and suggestions for such forms will be discussed elsewhere, but the actual document request itself should encompass every possible definition without exceeding the limitation of boundaries provided by the rules of discovery.  The Texas Supreme Court, in its commentary on the scope of permissible discovery cited to case law, stating "While the scope of discovery is quite broad, it is nevertheless confined by the subject matter of the case and reasonable expectations of obtaining information that will aid resolution of the dispute.  The rule must be read and applied in that context."  Does anyone know what that really means?  Thus, we find ourselves asking for everything, and waiting for the objection and subsequent hearing on motion to compel.  The best thing to ask yourself is the request itself reasonable and relevant under the facts and circumstances of your case.  As I am limited, thankfully, to property discovery in this paper as opposed to custody discovery, it is easier to at least get an idea of what is "reasonable."  With that in mind, following is a document request that we have compiled over a period of years based upon requests that we have made and requests that we have received from various attorneys.  Do not include everything on this list in your request for production unless you have a need for it.

 

      Sample Documents Request

 

      a.   Driver's license.  A copy of your current driver's license.

 

      b.   Social Security number.  A copy of your social security card or number.

 

      c.   Depository Records.      Any and all books, documents, or instruments, including but not limited to, canceled checks, bank statements, passbooks, monthly statements, savings records, certificates of deposit, check stub records, check registers, deposit slips, deposit tickets, withdrawal tickets, books and records of accounts, and all other depository records pertaining to all accounts in banks  (accounts being checking, savings, money market accounts, cash management accounts, certificates of deposit, or otherwise), loan associations, credit unions, co-ops, or other financial institutions or savings plans, which stand in your name alone, or in your name and your spouse's name, or in your name jointly with others, or which are subject to your withdrawal or control, or over which you and/or your spouse had signatory authority or any beneficial interest in at any time during the relevant time period, regardless of whether or not the account or accounts have been closed, regardless of whether or not same is or was a joint account or your account individually or business account, business or otherwise, or an account maintained for you, and/or your spouse by someone other than yourself, regardless of whether or not you and/or your spouse presently have signatory authority with reference to the same, or such account still is in your name or exists and including documents that provide information as to the source of the account style, account number, depository information, maturity date, if any, current status and balance and, if closed, the date of closing, amount of funds transferred therefrom, and where said funds went.

 

      d.   Safety Deposit Boxes and Vaults.  A listing and any and all other documents and financial records relating or pertaining to any safe deposit box rented or maintained by you, or in which documents or property owned by you were kept, or in which you have had any beneficial interest since _____.  This list should contain the location of and the dates during which each box or vault was maintained, the numerical description of such box or vault, a complete itemization and valuation of the contents thereof, and the name in which such box or vault was maintained.  Additionally, you should produce all signature cards and a full and complete list with respect to each such box or vault showing everything that was placed therein and everything that was removed, including the dates of such deposits or withdrawals.

 

      e.   Financial Statements.  The original of, or true, legible, complete and accurate copies of each and every personal financial statement prepared or issued by or for you and/or your spouse for any purpose during the relevant time period, regardless of whether they were issued to a financial institution, together with the name and business, address, and telephone number, of each and every person, firm, company, bank, organization, corporation, proprietorship, partnership, joint venture, or association to whom such financial statement has been issued, prepared and/or presented by or for you and/or your spouse during the relevant time period.

 

      f.    Retirement Benefits.  Any and all books, records, documents, or instruments, pertaining to any retirement plan, pension plan, profit-sharing, Keogh plan, Individual Retirement Accounts, stock purchase rights, thrift plan, PAYSOP, ESOP, employee benefit plan and credit union other employee benefit plan which you own or have owned any interest (or claim to own any interest), throughout the relevant time period, whether vested or contingent, including, but not limited to, the following information:

 

      (1)  the complete name of the plan, benefit, or rights;

      (2)  the date of the inception of your interest therein;

      (3)  its beginning or current fair market value, and whether or not related to any employment benefit;

      (4)  the date of first employment;

      (5)  the name of employer;

      (6)  a copy of the plan;

      (7)  all statements of the employer's contributions and/or your contributions throughout the relevant time period;

      (8)  any and all documents and financial records providing information so as to allow my client to completely evaluate same.

 

      g.   Benefits Furnished.  All documents or financial records relating to each and every benefit that you have received, enjoyed or been furnished throughout the relevant time period, by any employer, and other person (including, without limitation, your spouse, your parents, any friend relative or third party), or by any business entity.

 

      h.   Income.  Any and all records, books, documents, and instruments pertaining to or reflecting gross and net monies earned, received, or accrued by you from any source whatsoever during the relevant time period, including, but not limited to, wages, salary, payroll receipts, straight-time earned, overtime earned, bonuses, commissions, unemployment compensation, dividends, interest, proceeds from the sale or exchange of property, royalties, rental income, gifts, expense reimbursements and accounts, all other perquisites and fringe benefits, and including, but not limited to, all check stubs, earning statements, vouchers, reports, payroll records and W-2 forms, reflecting all deductions

 

      i.    Business Expense Records.  The originals of, or true, legible, complete, and accurate copies of, any and all documents, instruments or other papers reflecting expenses paid by you and/or your spouse or on your behalf during the relevant time period, in connection with any business or pursuit of gain or profit.

 

      j.    Expense Reimbursement.  Schedule of all expenses which you have submitted to your employer for reimbursement along with an itemization of such reimbursement that are made since _________.

 

      k.   Gifts, Inheritance, and Bequests.  Any and all records, information and explanation with reference to the receipt of and the use of all monies received by you or your spouse through gifts, inheritance, bequests and trusts since ____________.  Such explanation and information should show with respect to all monies received or other property received in this manner, when it was received, from whom, in what accounts any such money was deposited, how such money was used or spent, and when and what was purchased with the money.

 

      l.    Trusts.  The originals or authentic copies of any trust instruments, wills, books, records or documents (including, without limitation, copies of all statements, disbursement records, accounts, inventory and appraisement, and tax returns) in which you and/or your spouse are or were grantor, seller, trustee or beneficiary throughout the relevant time period.

 

      m.  Probated Estate.  Any and all records, documents and instruments pertaining to any estate in probate in which you are designated as distributee, including but not limited to, copy of the will, inventory and appraisement, and letter stated when distribution may be expected and probable amount that will be received by you.

 

      n.   Gifts.  Any and all records, documents and instruments reflecting any and all gifts, loans, or other benefits received by you during the relevant time period, including, but not limited to the value of such item, date such item was given, and reason such item was given.

 

      o.   Travel.  Any and all books, records, documents, and instruments which evidence any trips taken by you outside of the Dallas/Fort Worth area during the relevant time period, including, but not limited to, credit card statements and airlines ticket stubs for you and whomever you traveled with.

 

      p.   Paid-off Indebtedness.  Documentary or other tangible evidence of all indebtedness paid by you since __________.

 

      q.   Loans.  The original of, or true, legible, complete, and accurate copies of each and every loan and loan application made by or for you and/or your spouse for any purpose during the relevant time period, including each and every pro forma, income project and item of correspondence sent or received in connection therewith, together with the name and/or business name, address, and telephone number for each and every person, firm, company, bank organization, corporation, proprietorship, partnership, joint venture, association, govern-mental entity, or educational institution with whom any such loan was made or to whom such loan application was submitted by or for you and/or your spouse at any time during the relevant time period.

 

      r.    Promissory Notes, Installment Notes, Etc.  All promissory notes, installment notes, drafts, bills of exchange or other orders for the payment of money, or changes in action due or payable, in whole or in part, directly or indirectly, legally or beneficially to you or in which you claim or have claimed an ownership interest since __________.

 

      s.    Charge Account Records.  Any and all books, records, documents, or other instruments, including, but not limited to, account balances, receipts, credit applications, credit cards, monthly statements, itemization of charges, and any other documents relating to any open accounts, charge accounts, credit card accounts, issued to either you and/or your spouse throughout the relevant time period, or over which you and/or your spouse exercised dominion or control, were an authorized signatory or on which you made charges, together with all documents containing an itemization or explanation of the charge and all payments made, and all accompanying correspondence with each statement, including but not limited to: [specify accounts if known]

 

      t.    Guarantees.  All documentation relating to or reflecting guarantees by you of payment of indebtedness which is or was the obligation of another person or entity since ___________.

 

      u.   Mortgage Indebtedness.  All documents relating to any mortgage indebtedness payable on our homestead showing the method of repayment required, the date of the mortgage, to whom the mortgage payments are payable, the amount of reserves, the present status and balance of such loan, along with a copy of the mortgage note or notes on the house and deed of trust or other encumbrances to title.

 

      v.   Vehicle Ownership.  Any and all books, records, documents, or instruments pertaining to all motor vehicles, boats, aircraft, recreational vehicles, motor-cycles, trailers, and other motor powered equipment or vehicles owned (presently or at any time during the relevant time period) or claimed in whole or in part by you and/or your spouse at any time throughout the relevant time period, including documentation showing at least the following information in regard to each item:

 

      (1)  document of title;

      (2)  contract of sale;

      (3)  any mortgages, liens, or debts against the property;

      (4)  the complete property description;

      (5)  date of acquisition;

      (6)  the fair market value;

      (7)  date the property was sold;

      (8)  funds received on the date of sale;

      (9)  where the funds were placed, spent or deposited;

      (10) the tax basis of the property; and

      (11) the name of the legal, equitable and beneficial owner of the property.

 

      w.  Realty Instruments, Excluding Mineral Rights and Oil and Gas Rights.  Any and all books, records documents, or instruments, including, but not limited to deeds, deeds of trust, contracts of sale, leases, liens, closing or settlement statements, mortgages, and promissory notes, pertaining to any and all real property interest for the relevant time period, including, but not limited to, leasehold interest owned in whole or in part by you and/or your spouse, or in which you and/or your spouse have or claim to have legal or equitable title, including without limitation, documentation showing the following information regarding each item of real property:

 

      (1)  the complete property description;

      (2)  the date of its acquisition;

      (3)  its fair market value;

      (4)  all debts secured by it;

      (5)  copy of any and all pending contracts for sale or other contracts;

      (6)  copy of any and all contracts presently being negotiated by the parties;

      (7)  its tax basis; and

      (8)  the legal, equitable or beneficial ownership in said property.

 

      x.   Promissory Notes, Installment Notes, Etc.  All promissory notes, installment notes, drafts, bills of exchange or other orders for the payment of money, due or payable, in whole or in part, directly or indirectly, legally or beneficially to you or in which you claim or have claimed an ownership interest since _________.

 

      y.   Mineral Rights/Oil and Gas Rights.  Any and all books, records, documents, or instruments, including documents of title, relating to all oil and gas or other mineral interests in which you and/or your spouse own or have owned during the relevant time period, whether legal, equitable, and/or beneficial, and all records concerning the nature of such interest (whether leasehold, working interest, royalty, overriding interest, net profit interest, or other forms of interest).  Such information to include, but in no way be limited to, the following:

 

      (1)  field name;

      (2)  county in which located;

      (3)  lease name;

      (4)  operator name;

      (5)  Railroad Commission  or other I.D. number;

      (6)  your share of expenses paid;

      (7)  your revenue or income for all such properties;

      (8)  a complete description of the rights;

      (9)  the date of acquisition;

      (10) its fair market value;

      (11) all debts secured by it, if any;

      (12) its tax basis;

      (13) copy of any and all contracts for sale or other contracts;

      (14) copy of any and all contracts presently being negotiated by the parties;

      (15) closing or settlement statements; and

      (16) the legal, equitable or beneficial ownership of same.

 

      z.    Real Property Interest Held Through Partnership or Joint Venture.  Any and all books, records, documents, or instruments, including, but not limited to, any and all deeds, deeds of trust, contracts of sale, leases, liens, security agreements, closings or settlement statements or documents, mortgages, and promissory notes, pertaining to any and real property interest, including, but not limited to, leasehold interest owned in whole or in part by you and/or your spouse or in which you and/or your spouse have or claim to have legal or equitable title during the relevant time period, including without limitation, documentation showing the following information regarding each item of real property;

 

      (1)  copy of partnership joint venture agreement;

      (2)  all joint venture contracts;

      (3)  all carried interest in said contracts and real estate transactions;

      (4)  documents relating to the carried interest in any joint ventures;

      (5)  copies of any and all pending contracts for sale or other contracts;

      (6)  copies of any and all contracts presently being negotiated by the parties;

      (7)  names and addresses of all partners or co-venturers;

      (8)  the legal, equitable or beneficial ownership in said property.

 

      aa.  Stocks and Bonds.  Any and all books, records, documents, and instruments pertaining to all stocks, stock options, bonds, commodities or other securities in which you own or have owned any interest, legal or equitable, including, but not limited to, original bonds, shares or certificates, collateral pledge agreements, buy-sell agreements, statements and confirmation slips from brokers from ___________ to the present.

 

      bb.  Investments.  Any and all books, records, documents, or instruments pertaining to all investments of any and all kinds that you and/or your spouse have made of any type and nature throughout the relevant time period, including without limitation, those made in any governmental entity, privately-held corporations, publicly-held enterprise or entity in which you and/or your spouse own or have owned any interest, legal, equitable, or otherwise, or in artwork, coins, automobiles, firearms, furniture and any other personal property, and real estate, including but not limited to, the following information:

 

      (1)  any and all books, records, documents, or instruments relating to stock brokerage firms through which you have traded or purchased securities, including monthly statements, printouts, and all correspondence;

      (2)  all stock certificates, bond certificates, government securities, private securities, stock brokerage statements, list of shares or collateral pledge agreements and buy-sell agreements, other instruments registered in the name of you and/or your spouse or representative, or a nominee of you and/or your spouse or any of your and/or spouse's business interests, evidencing your or your spouse's ownership of any and all such investment;

      (3)  any and all documents, instruments and other papers reflecting purchases and/or sales of any type of stock, bond, debenture, warrant, option, commodity partnership interest, or other security by you and/or your spouse's nominee or representative, or by any one of t he business interests in which you and/or your spouse are involved;

      (4)  records of each and every security or investment transaction made in any name used by you and/or your spouse, made by you and/or our spouse or on behalf of you and/or your spouse  by any of your and/or you spouse's nominees or representatives or on behalf of any business interest in which you and/or your spouse are involved.  This request is to include production of the actual documents or certificates of ownership evidencing ownership, and all booklets, plans, printouts, reports, summary statements of benefits, restatement of benefits, statement of accounts, restatements of accounts, evidence of benefits, dividends, or interest accrued or paid out of or for each through the nominee or representative or any investment made through any business in which they are involved, whether current, not current, presently in force, canceled, surrendered, in existence, or otherwise.  This request also includes documentation which shows a complete description of the investment, the date of acquisition of the asset, the date of the sale of the asset, the capital gain or loss recognized by same, whether or not the original capital gain recognized was reported to the Internal Revenue Service;

      (5)  the fair market value of the stocks currently held or held at any time throughout the relevant time period by you and/or your spouse;

      (6)  list of all debts secured by each such investment;

      (7)  the tax basis , value at time of deposition or current value of each such investment;

      (8)  the name of legal, equitable, and beneficial owner of each such investment asset;

      (9)  documents and financial records that clearly identify and describe the nature and type of investment, the period for which it was held, its cost, the current status of same, the value of same throughout the time that it was owned or held by you or on your behalf, its liquidation or closing value, the amount of proceeds received at divestiture and where such proceeds went.

 

      cc.  Any Other Property Interests.   All documents or financial records reflecting any interest held or possessed (beneficial or otherwise) by you in any other type of investment, asset, or property interest, whether or not in your name, and including any property or property interest that you used or over which you exercised any type of dominion or control, throughout the relevant time period and heretofore otherwise requested or produced.

 

      dd. Insurance.   Any and all books, records, documents, or instruments, regarding each and every insurance policy for life, health, disability, liability, fire, and casualty loss (pertaining to home, automobiles, boats, trailers, aircraft, recreational vehicles, vehicles of any type, nature or character, motorcycles, personal property, livestock, realty, stocks, bonds, art, coin, or any other collection, or any assets of any other type) for property or property interest owned by you and/or your spouse throughout the relevant time period, as well as insurance policies owned or claimed in whole or in party by you and/or your spouse or in which either or both of you have claim to have legal or equitable interest, or have paid any premium on during the relevant time period, including at least the following information with regard to each policy:

 

      (1)  the name of the issuing company;

      (2)  its date of issuance;

      (3)  its present cash surrender value;

      (4)  the name of the beneficiaries;

      (5)  the extent of the benefits (coverage) it provides or the face amount of its benefits;

      (6)  the name of the insured person or item of property;

      (7)  a copy of each policy; and

      (8)  the dates and amounts of any loans against or disbursement from said policies, and where any proceeds from such policies went.

 

      ee.  Life Insurance. All life insurance policies on your life, your spouse's life, of which you or an owner of beneficiary, legally or beneficially, including any certificate or certificates of group insurance, whether owned by you individually or taken out on your life by a Trust, corporation or other entity, and all documents evidencing cash values of and loans against such life insurance policies, including the date such loans were insured the amounts thereof, and all records of repayments thereof, in whole or in part.

 

      ff.   Insurance Proceeds.  Any and all books, records, documents, and instruments relating to any proceeds received from an insurance policy.

 

      gg.  Capital Gains Taxes.  Any and all books, records, documents, and instruments which reflect any income or capital gains on which taxes have been paid for the calendar years __________.

 

      hh.  Individual Tax Returns.  Complete copies of each and every individual (including, without limitation, tax returns in which you filed a separate return and/or married, filing jointly) federal or state income tax return filed by you and/or your spouse or in your behalf for calendar years _______ through _________, together with any and all schedules or attachments, and including any and all amendments submitted with reference to any return, plus all documents and worksheets used in connection with the preparation of same, and, if any such return for any year has not yet been prepared, then all worksheets and all supporting data including, but not limited to W-2 forms, 1099 forms and other evidence of earnings for that year you and/or your spouse contemplate possible using in order to compile and formulate each of such returns.

 

      ii.    Notice of Unpaid Income Taxes.  Any and all records, documents, instruments, or notices of unpaid income taxes.

 

      jj.    Personal Correspondence.   All correspondence, cards, notes, other writings, papers, and memoranda addressed to you from ________, and copies of all correspondence, cards, notes, other writings, papers, and memoranda addressed to ____________ from you.

 

      kk.  Diaries, Etc.  Any and all notes, diaries, calendars, journals, memoranda, and other type of personal notations made by you since __________.

 

      ll.    Employment Contracts.  All written employment contracts, agreements, letters, or other instruments for any employment you have had throughout the relevant time period and any further employment, together with the details for any non-written contracts of employment and of any negotiations under way for any future employment which reflect overtime compensation, Christmas or other bonuses, deferred compensation, business expenses paid by employer, other receipts arising out of employment, life insurance, hospital insurance, medical insurance, vacation and sick-leave benefits, severance pay, pension/retirement/profit sharing plans, and rights to purchase stock in the employer's company.

 

      mm. Report of Experts.  All documents and tangible things including all tangible reports, physical models, compilation of data and other material prepared by, for, or provided to an expert in anticipation of the expert's trial and/or deposition testimony, whether it was prepared in anticipation of litigation or for trial when it forms a basis in whole or part of the opinion of the expert who is to be called as a witness.

 

      nn.  Health Professional's Documentation.    All documents, reports and tangible items which state the findings, conclusions, or diagnosis made by any physician, psychologist, psychiatrist, counselor, or other health professional whom you have seen for the past _____ years.

 

      oo.  Attorney Fees.  Copies of all contracts between you and your attorney in connection with the subject matter of this cause, together with copies of all statements received by you from you attorneys in connection with this cause and all documents and financial records reflecting all payments by you to said attorneys in connection with the subject matter of this cause of actions, and through time of trial.

 

      pp.  Other Lawsuits.  Any and all pleadings and all other documents in your possession or under your control which relate to any and all lawsuits to which you are a party or have been a party within the last _____ years (even though same might now be settled.)

 

      qq.  Medical Records.  All medical records, prescription records, pharmacy records, hospital bills, or other billings reflecting medical care rendered on your behalf.

 

      rr.   Tangible Documents. All photo, tape recordings, written documents, or other demonstrative evidence that you intend to use at trial or you contend supports any request for damages made by you in this cause of action.

 

      Additionally, the new rules of discovery now contain special provisions for the request of electronic or magnetic data, and for testing and sampling.  The comments to Rule 196 (requests for production & inspection) state:

 

      "A party requesting sampling or testing must de-scribe the procedure with sufficient specificity to enable the responding party to make appropriate objections. A party requesting production of magnetic or electronic data must specifically request the data, specify the form in which it wants the data produced, and specify any extraordinary steps for retrieval and translation.  Unless ordered otherwise, the responding party need only produce the data reasonably available in the ordinary course of business in reasonably usable form."

 

      b.   Subpoenas for Document Production

 

      This subject is treated elsewhere in the paper.

 

4.   DOCKET DOCKET DOCKET

 

      To effectively and efficiently manage your property case you must have some appropriate methodology in place to keep up with discovery and deadlines for yourself and for your opponent.

 

      These are the deadlines and requirements you must keep up with:

 

            a.   Filing/Serving of Discovery Materials

 

            Discovery materials that must not be filed with the Court Clerk are:

 

                  (1)  discovery requests, deposition notices, and subpoenas required to be served only on parties;

 

                  (2)  responses and objections to discovery requests and deposition notices, regardless on whom the requests or notices were served;

 

                  (3)  documents and tangible things produced in discovery;

 

                  (4)  statements prepared in compliance with asserting a privilege under Rule 193.3(b) or (d).  TRCP 191.4(a).

 

      Discovery materials that must be filed are:

 

                  (1)  discovery requests, deposition notices, and subpoenas required to be served on nonparties;

 

                  (2)  motions and responses to motions pertaining to discovery matters; and

 

                  (3)  agreements concerning discovery matters, to the extent necessary to comply with Rule 11.  TRCP 191.4(b).

 

      b.   Requests for Production and Inspection

 

      No later than thirty days before the end of the discovery, a party may serve on another party a request for production or for inspection, to inspect, sample, test, photograph, and copy documents or tangible things within the scope of discovery.  TRCP 196.1.  The requests must specify the items to be produced or inspected, either by individual item or by category, and describe with reasonable particularity each item and category.  The requests must specify a reasonable time (on or after the date on which the response is due) and place for production.  TRCP 196.1(b).

 

      (1)  Time for Response

 

      The responding party must serve a written response on the requesting party within 30 days after service of the request except that a defendant/respondent served with a request before respondent’s answer is due, need not respond until 50 days after service of the request.  TRCP 196.2(a).  If the written response is personally served, the due date for the response is within thirty days after the date of service.  If the written request is served by U.S. mail or be facsimile before 5:00 p.m., the due date for the response is the date of mailing, usually the date of postmark, or the date of facsimile, plus three days plus thirty days for a total of thirty-three days.  If the request for production is received by fax after 5:00 p.m., four days is added to the thirty day response period, so the response would be due thirty-four days after the date of the facsimile.  TRCP 21a

 

      (2)  Content of Response

 

      With respect to each item or category of items, the responding party must state objections and assert privileges as required by the Texas Rules of Civil Procedure, and state, as appropriate that:

 

            (a)  Production, inspection, or other requested action will be permitted as requested;

 

            (b)  The requested items are being served on the requesting party with the response;

 

            (c)  Production, inspection , or other requested action will take place at a specified time and place, if the responding party is objecting to the time and place of production; or

 

            (d)  No items have been identified – after a diligent search – that are responsive to the request.  TRCP 196.2(b).

 

      (3)  Time and Place of Production

 

      Subject to any objection stated in the response, the responding party must produce the requested documents or tangible things within the person’s possession, custody, or control at either the time and place requested or the time and place stated in the response, unless otherwise agreed by the parties or ordered by the court, and must provide the requesting party a reasonable opportunity to inspect, sample, test, photograph, and copy the documents or tangible things.  TRCP 196.3(a).  TRCP 192.7(b) defines possession, custody, or control as follows:

 

      “Possession, custody, or control of an items means that the person either has physical possession of the item or has a right to possession of the item that is equal or superior to the person who has physical possession of the item.”

 

      (4)  Copies

 

      The responding party may produce copies in lieu of originals unless a question is raised as to the authenticity of the original or in the circumstances where it would be unfair to produce copies in lieu of originals.  If originals are produced, the responding party is entitled to retain the originals while the requesting party inspects and copies them.  TRCP 196.3(b).

 

      (5)  Organization of Documents and Tangible Things

 

      Respondent party must either produce documents and things as they are kept in the usual course of business or organize and label them to correspond with the categories in the request for production and inspection.  TRCP 196.3(c).

 

      (6)  Production Electronic or Magnetic Data

 

      “To obtain discovery of data or information that exists in electronic or magnetic form, the requesting party must specifically request production of electronic or magnetic data and specify the form in which the requesting party wants it produced.  The responding party must produce the electronic or magnetic data that is responsive to the request and is reasonably available to the responding party in its ordinary course of business.  If the responding party cannot – through reasonable efforts – retrieve the data or information requested or produce it in the form requested, the responding party must state an objection complying with these rules.  If the court orders the responding party to comply with the request, the court must also order that the requesting party pay the reasonable expenses of any extraordinary steps required to retrieve and produce the information.”  TRCP 196.4.

 

      (7)  Expenses of Production

 

      Unless otherwise ordered by the court for good cause, the expense for producing items will be borne by the responding party.  The expense of inspecting, copying, sampling, and photographing items produced will be paid by the requesting party.  TRCP 196.6.

 

      c.   If You Represent the Requesting Party

 

      Determine what documents you really want and need in your case.  Remember, whatever document you request of the other party, will be requested of your client, plus other documents.  Do not simply ask for every document you have in your form file.  Customize your request for production of documents to what is really appropriate, applicable and needed for your case.

      You will need to establish a discovery section in your trial notebook, or set up a separate discovery notebook in which you will maintain copies of the discovery you have requested and calendar the due dates.  A cover sheet could be utilized for your request for production of the documents.

 

      (1)  Inspecting and Copying the Documents

 

      The next step in the process is to go through the box or boxes produced, whether it be at your office or at the opposing party’s office.  The first task for the legal assistant, lawyer, and client, or any combination thereof, is to go through the documents and make a detailed index of what documents have been produced and have not been produced.  Next, it must be determined what documents should be copies and whether you can copy the documents at the opposing attorney’s office and at what cost, whether you can take documents to your office for copying or whether you’ll have to use a copy service.  If the documents are not already organized in numbered file folders that correspond to the numbered Requests for Production, that organizational task will have to be accomplished.  A decision will need to be made as to whether or not to Bates stamp the documents or to have the copy service Bates stamp the documents for you.

      After getting the documents back to your office, most attorneys will make a very detailed index on their word processing program, listing exactly what documents were produced under each category.  Some firms even list the number of pages of each month’s statement and each check and deposit slip.

      Many firms keep the original set of the documents they receive in numbered file folders, correspondent to the Requests for Production and place an index on the front of each file folder and/or on the lid of each box containing documents.  Some law firms make extra copies of documents that they intend to use in trial and place them as backup material with the other evidence to prove the separate character of property or other trial issues.

      Utilization of indexes through word processing programs or specialized software such as Summation and Concordance can be very helpful in places with voluminous documents because they allow the user to retrieve documents by word searches.

 

      d.   If You Represent the Producing/ Respondent Party

 

      When your office receives a Request for Production of Documents from the opposing party, to which your client must respond, you must first insert the due dates on your discovery calendar, and other calendaring systems, the due dates list in the client file, and on the cover sheet of that portion of your trial notebook or separate discovery notebook.

      The attorney or legal assistant must immediately get the Requests for Production of documents to the client, with an explanation of how the documents should be gathered and organized.  Many attorneys send labeled, numbered file folders, corresponding with each numbered request for production, in which the client should put the documents to be produced.  The client needs to get the documents to the legal assistant within two weeks of the request being received, so there is time for the legal assistant to help the client organize and index the documents and determine what documents the client has failed to produce.

      A decision will need to be made as to whether or not to Bates stamp documents your client is going to produce.  Many firms routinely Bates stamp or use another numbering system in order to have proof that they have produced the documents to the opposing attorney.  If the documents are not too voluminous, the client can be asked to make three sets of copies: one for the client, one for you, and one for the opposing attorney.  If the documents are too voluminous however, documents can be maintained in the law office for the other attorney to come and inspect and determine what copies will be made.  As the attorney for the responding party, you need to make a decision as to whether or not you want the opposing attorney or legal assistant in your law office tying up your copy machine or whether you will require the opposing attorney to utilize a copy service to make the copies or allow the documents to be taken to the opposing attorney’s office.

      In any event, the legal assistant will need to make a detailed index of the documents your client has provided by using a word processing program, a spreadsheet program like Microsoft Excel, a database program like Microsoft Access, or special database software designed for document control like Summation or Concordance, in order that the documents that were produced can easily be ascertained and located.  At a minimum, there is a master index that is utilized when providing the written response to the Requests for Production, as well as sub-indexes that could be placed on the outside of each file folder and on each file box that contains file folders and documents.

 

5.   FIGURE OUT WHAT YOU NEED TO PROVE AND HOW YOU ARE GOING TO PROVE IT

 

      In order to be successful at trial, you will  need to take some time and determine what documents and testimony you will need in order to prove your case.  Time and space does not permit a lengthy discussion regarding all matters that this concept may apply to, e.g. rules regarding tracing of assets, valuation of economic contribution or reimbursement claims, debt marshaling and the like.  However, it is important to know what documents you need in order to prove your case and how to properly authenticate those records so as to make them admissible for use by the trier of fact.  Remember also that TRCP 193.7 Production of Documents allows that party to self authenticate the document against a party if the document is produced to the party in response to a request for production and that opposing party is given actual notice that the document will be used at trial unless the opposing party objects within ten (10) days.  The following are examples of predicates for documents commonly used in property cases obtained primarily from the Family Law Foundation Predicates Manual.

 

      a.   Accounting Records

 

      Foundation for admission of accounting record print-outs kept in files:

 

      (1)  Identity of record custodian;

      (2)  Familiarity of record custodian with machine accounting procedures;

      (3)  Description of machine accounting procedures;

      (4)  Precautions taken to prevent errors;

      (5)  Correction of errors discovered;

      (6)  Explanation of the reason magnetic tapes are erased;

      (7)  Establishment of usual and customary business methods; and

      (8)  Explanation of reason for elimination of unnecessary machine operations.

 

      Foundation for admission of accounting record print-outs made specially for trial:

 

      (1)  Identification of exhibit;

      (2)  Description of mechanical process used to convert machine-language records into readable print-outs;

      (3)  Establishing usual and customary office procedure to prepare readable print-outs of machine-language records whenever necessary; and

      (4)  Showing identify between print-outs and machine-language records they represent.

 

T.R.E. 803 and 1006

 

      b.   Attorney’s Fees

 

      (1)  It was necessary for the party to retain an attorney;

      (2)  The witness is an attorney whose experience justifies his or her hourly rate;

      (3)  The fees are reasonable and customary;

      (4)  The fees are necessary; and

      (5)  The client is obligated to pay the fees charged.

 

CPRC §38.001

 

      c.   Audit

 

      (1)  The auditor was appointed by the Court pursuant to TRCP 172 to conduct an investigation of accounts or examination of vouchers;

      (2)  The report states that the auditor has carefully examined the state of the account between the parties, and that his report contains a true statement thereof, so far as the same has come within his knowledge; and

      (3)  The report is verified by the auditor.

 

T.R.E. 706

 

      d.   Automobile Record

 

      (1)  A record of a document purporting to establish or affect an interest in property;

      (2)  As proof of the content of the original recorded document and its execution and delivery by each person by whom it purports to have been executed;

      (3)  The record is a record of public office; and

      (4)  An applicable statute authorizes the recording of documents of that kind in that office.

 

T.R.E. 803(14)

 

      e.   Bank Record

 

      (1)  The record must have been made at or near the time of the event or from information transmitted by a person with knowledge;

      (2)  Kept in the course of regularly conducted business activity; and

      (3)  All shown by the testimony of the custodian or other qualified witness, or by affidavit that complies with T.R.E. 902(10), unless the source of information or method or circumstances of preparation indicated lack of trustworthiness.

 

T.R.E. 803(6)

 

      f.    Business Record

 

      (1)  Witness is custodian or other person with knowledge of the business’ filing system;

      (2)  The record was made in the ordinary course of business;

      (3)  The record was made at or near the time of the event in question;

      (4)  In the regular course of business, a person with knowledge made the record or was furnished with the information for the record; and

      (5)  It was the regular practice of that business activity to make such a record.

 

T.R.E. 803(6)

 

      g.   Charge Account Record

 

      (1)  The business record as prepared by a person with knowledge;

      (2)  The record was prepared at or near the time of the act or event which is the subject of the record;

      (3)  The record was kept in the course of a regularly conducted business activity; and

      (4)  It was the regular practice of that business to prepare such a record.

 

T.R.E. 803

 

      h.   Check

 

      (1)  The document purports to be an original or a copy of an instrument which qualifies as commercial paper as provided by general commercial law, or a signature thereon, or a document relating thereto; and

      (2)  The instrument, signature(s) thereon, or documents(s) relating thereto are presumptively authentic commercial paper.

 

T.R.E. 902

 

      i.    Computer Printout

 

      The foundation for admitting a computer printout as a business record should establish, through the testimony of the custodian of the computer-kept records or other person familiar with the manner in which the records were processed and maintained, the following:

 

      (1)  The reliability of the data processing equipment used to keep the records and produce the printout;

      (2)  The manner in which the basic data was initially entered into the system;

      (3)  That the data were so entered in the regular course of business;

      (4)  That the data were entered within a reasonable time after the events recorded by persons having personal knowledge of the events;

      (5)  The measures taken to insure the accuracy of the data entered;

      (6)  The method of storing the data and the safety precautions taken to prevent loss of the data while in storage;

      (7)  The reliability of the computer programs and formulas used to process the data;

      (8)  The measures taken to verify the proper operation and accuracy of these programs and formulas; and

      (9)  The time and mode of preparation of the printouts.

 

T.R.E. 1001

 

      j.    Creditor Record

 

      (1)  The business record was prepared by a person with knowledge;

      (2)  The record was prepared at or near the time of the act or event which is the subject of the record;

      (3)  The record was kept in the course of a regularly conducted business activity; and

      (4)  It was the regular practice of that business to prepare such a record.

 

T.R.E. 803

 

      k.   Data Stored Electronically

 

      (1)  The witness is a competent computer operator;

      (2)  The computer used is accepted as standard and efficient equipment;

      (3)  Appropriate procedures were followed regarding data entry and checks for accuracy;

      (4)  The computer was operated and programmed property; and

      (5)  The record has the significance which the witness claims it has.

 

T.R.E. 1001

 

      l.    Deed

 

      (1)  The document purports to be a copy of an official record;

      (2)  A certificate is attached to the copy;

      (3)  The certificate states that the signatory is a public custodian of official records;

      (4)  The certificate states that the document is a true and accurate copy of an original, official record; and

      (5)  The certification bears a presumptively authentic signature and/or seal.

 

T.R.E. 902

 

      m.  Employment Contract

 

      (1)  The business record was prepared by a person with knowledge;

      (2)  The record was prepared at or near the time of the act or event which is the subject of the record;

      (3)  The record was kept in the course of a regularly conducted business activity; and

      (4)  It was the regular practice of that business to prepare such a record.

 

T.R.E. 803

 

      n.   Financial Information Statement

 

      (1)  The financial information statement is a summary of other records;

      (2)  The other records are voluminous writings, recordings, or photographs that are admissible;

      (3)  The other records cannot be conveniently examined in court; and

      (4)  The other records were made available to the other party for inspection and copying.

 

T.R.E. 1006

 

      o.   Goodwill of a Professional Business

 

      (1)  Qualify expert;

      (2)  Authenticate and have witness explain data relied on;

      (3)  Establish whether the practice/business has any personal and/or professional goodwill;

      (4)  If so, explain the difference and that any consideration of the value of personal goodwill has been excluded from the calculation; and

      (5)  Have witness state opinion as to value.

 

T.R.E. 702

 

      p.   Income Tax Record

 

      (1)  Record was made and kept in the regularly conducted business activity;

      (2)  It was in the regular practice of the business activity to make the record;

      (3)  The record was made at or near the time of the event that it records; and

      (4)  The record was made by, or from information transmitted by, a person with knowledge acting in the regular course of business.

 

T.R.E. 803

 

      q.   Insurance Record

 

      (1)  Record was made and kept in the regularly conducted business activity;

      (2)  It was in the regularly practice of the business activity to make the record;

      (3)  The record was made at or near the time of the event that it records; and

      (4)  The record was made by, or from information transmitted by, a person with knowledge acting in the regular course of business.

 

T.R.E. 803

 

      r.    Inventory

 

      (1)  Have court take judicial notice of inventory in its file

      or

      (1)  Have witness identify their inventory which as been marked as an exhibit;

      (2)  That the items of property and related values reflect their opinion as to the nature and value of the items reflected;

      (3)  That if asked to testify as to each item and its value they would testify as reflected on the exhibit;

      (4)  Offer the inventory as a shorthand rendition.

 

T.R.E. 901

 

      s.    Market Report

 

      (1)  Establish that the report, list, tabulation, etc. is generally used and relied upon by the public or by persons of particular occupations (e.g. N.A.D.A. stock quotes in newspaper, business periodicals, etc.)

      (2)  Offer report, list, tabulation (or copy).

 

T.R.E. 803

 

      t.    Marital Agreement

 

      1.   By Proponent

 

      (a) Written agreement;

      (b) Signed by both parties; and

      (c)  Mark and offer marital agreement.

 

      2.   By Opponent (contesting Marital Agreement)

 

      (a)  Contesting party did not sign marital agreement voluntarily; OR

      (b)  The agreement was unconscionable when it was signed, AND before signing, that party:

      (1)  Was not provided a fair and reasonable disclosure of the property or financial obligations of the other party;

      (2)  Did not voluntarily and expressly waive, in writing, any right to disclosure of the property or financial obligations of the other party beyond the disclosure provided; AND

      (3)  Did not have, or reasonably could not have had adequate knowledge of the property or financial obligations of the other party.

 

Tex. Fam. Code §4.006 and 4.105

 

      u.   Mediation Agreement

 

      (1)  Written evidence of referral to mediation by agreement of parties or order of court;

      (2)  Mediated settlement agreement contained boldface statement reflecting that mediated settlement is not subject to revocation;

      (3)  The mediated settlement agreement is signed by both parties, and their counsel, if any, who is present at the time the agreement is signed; and

      (4)  Mark and offer the mediated settlement agreement.

 

Tex. Fam. Code §6.602 and 153.0071

 

      v.   Medical Bill

 

      (1)  Record was made and kept in the regularly conducted business activity;

      (2)  It was in the regularly practice of the business activity to make the record;

      (3)  The record was made at or near the time of the event that it records; and

      (4)  The record was made by, or from information transmitted by, a person with knowledge acting in the regular course of business.

 

T.R.E.  803

 

      w.  Owner’s Opinion of Value

 

      (1)  Establish ownership interest in subject property;

      (2)  Owner is familiar with and has personal knowledge of property; and

      (3)  Owner’s opinion of the fair market value of property is ________.

 

      x.   Partnership Records

 

      (1)  Record was made and kept in the regularly conducted business activity;

      (2)  It was in the regularly practice of the business activity to make the record;

      (3)  The record was made at or near the time of the event that it records; and

      (4)  The record was made by, or from information transmitted by, a person with knowledge acting in the regular course of business.

 

      y.   Paycheck Stubs

 

      (1)  Record was made and kept in the regularly conducted business activity;

      (2)  It was in the regularly practice of the business activity to make the record;

      (3)  The record was made at or near the time of the event that it records; and

      (4)  The record was made by, or from information transmitted by, a person with knowledge acting in the regular course of business.

 

T.R.E. 803

 

      z.    Payroll Record

 

      (1)  Record was made and kept in the regularly conducted business activity;

      (2)  It was in the regularly practice of the business activity to make the record;

      (3)  The record was made at or near the time of the event that it records; and

      (4)  The record was made by, or from information transmitted by, a person with knowledge acting in the regular course of business.

 

T.R.E. 803

 

      aa. Prenuptial Agreement

 

      1.   By Proponent

 

      a. Written agreement;

      b. Signed by both parties; and

      c. Mark and offer marital agreement.

 

      2.   By Opponent (contesting Premarital Agreement)

 

      a. Contesting party did not sign premarital agreement voluntarily; OR,

      b. The agreement was unconscionable when it was signed, AND before signing, that party:

      (1)  Was not provided a fair and reasonable disclosure of the property or financial obligations of the other party;

      (2)  Did not voluntarily and expressly waive, in writing, any right to disclosure of the property or financial obligations of the other party beyond the disclosure provided; and

      (3)  Did not have, or reasonably could not have had adequate knowledge of the property or financial obligations of the other party.

 

Tex. Fam. Code §4.105

 

      bb.  Promissory Note

 

      (1)  The facts and circumstances attendant to the making of the statement gave it legal significance or effect, regardless of the truth or falsity of the matter asserted;

      (2)  The document purports to be an original or copy of an instrument which qualifies as commercial paper as provided by general commercial law, or a signature thereon, or a document relating thereto; and

      (3)  The instrument, signature(s) thereon, or document(s) relating thereto are presumptively authentic commercial paper.

 

Bobbie Brooks, Inc. v. Goldstein, 567 S.W.2d 902 (Tex.Civ.App.—Eastland 1978, writ ref’d n.r.e.)

 

      cc. Property Tax Record

 

      (1)  The document purports to be a copy of an official record;

      (2)  A certificate is attached to the copy;

      (3)  The certificate states that the signatory is a public custodian of official records;

      (4)  The certificate states that the document is a true and accurate copy of an original, official record; and

      (5)  The certificate bears a presumptively authentic signature and/or seal.

 

T.R.E. 902

 

      dd. Real Estate Record

 

      Predicate to admission of the document:

 

      (1)  The record establishes or affects an interest in property;

      (2)  The record proves the content of the originally recorded document, its execution and its delivery to each person by whom it purports to have been executed;

      (3)  The record is of a public office; and

      (4)  An applicable statute exists authorizing the recording of the document.

 

      Predicate to admission of statements in document:

 

      (1)  The statement must be relevant to the purpose of the document; and

      (2)  Dealings with the property cannot be inconsistent with the statement or the document.

 

T.R.E. 803(14)

 

      ee. Stocks and Bond Records

 

      (1)  The facts and circumstances attendant to the making of the statement gave it legal significance or effect, regardless of the truth or falsity of the matter asserted.

      Or

      (1)  Identify the records; and

      (2)  If duplicates are used, establish that the duplicates are true and correct copies of the originals (“Duplicate” is defined in T.R.E. 1001(4).  Duplicates are admissible to the same extent as originals except as specified in T.R.E. 1003).

      (3)  Establish that the record was:

 

      a.   Made at or near the time that the information of the record came to the attention of the business;

      b.   Made by, or from information transmitted by, a person with knowledge;

      c.   Made in the regular practice of the business; and

      d.   Kept in the regular course of the business.

 

      Or

      (1)  The record is a published compilation; and

      (2)  The record is generally used and relied upon by the public or by persons in a particular profession.

 

Bobbie Brooks, Inc. v. Goldstein, 567 S.W.2d 902 (Tex.Civ.App.—Eastland 1978, writ ref’d n.r.e.

 

      ff. Summary

 

      (1)  Witness prepared the summary or attorney (or staff) prepared with witnesses’ assistance;

      (2)  Witness has reviewed the records from which the summary was compiled;

      (3)  Witness explains the document(s) from which the summary was prepared;

      (4)  Witness is qualified to understand the nature of the underlying documents;

      (5)  Witness testifies that the documents relied upon to compile summary was voluminous and cannot be conveniently examined in court;

      (6)  The records relied upon to compile the summary have been previously made available for examination or copying, or both, by other parties at a reasonable time and place to opposing counse;

      (7)  The underlying records would be admissible; and

      (8)  The summary reflected is accurate.

 

T.R.E. 1006

 

      gg. Tax Record

 

      Sears, Roebuck & Co. v. Ramirez, 824 S.W.2d 558, 559 (Tex. 1992)

      Hall v. Lawlis, 907 S.W.2d 493, 494 (Tex. 1995)

      Chamberlin v. Cherry, 818 S.W.2d 201, 206 (Tex.App.—Amarillo 1991)

 

6.   ISSUE YOUR OWN SUBPOENAS EARLY

 

      An important and integral new part of the attorney’s discovery arsenal is the “discovery” subpoena to non-parties now available under TRCP 176.2.  A discovery subpoena is a writ by which a court, at the request of a party, commands a person to appear or produce documents or other things for discovery.  TRCP 176.2.  TRCP 176 no longer uses the term “subpoena duces tecum.”  A person commanded to produce documents or other things need not appear in person at the time and place of production unless the subpoena commands the person to attend and give testimony TRCP 176.6(c).  In most cases, a discovery subpoena is issued to compel a nonparty to attend a deposition and produce documents.  To secure documents and other tangible things from nonparties, a party must serve a notice on both the party and nonparty and a discovery subpoena.  TRCP 205.1, 205.2.  A party is not required to file a motion for production to obtain documents from a nonparty.  TRCP 205, cmt.  However, a party is required to file a motion and secure a court order when it seeks to take a deposition of a nonparty before suit under TRCP 202 or to secure a physical or mental examination under TRCP 204.  TRCP 205.1

      Although this rule and TRCP 205.1 authorize subpoenas to require witnesses to appear with or without documents for a deposition, this ability has long been with us.

      Under the 1999 discovery rules, a non-party may be subpoenaed to produce documents or things, without requiring the nonparty to appear for a deposition.  TRCP 205.3.  When the subpoena commands a witness to produce documents or other things but not to give testimony, the witness need not appear in person at the time and place of production.  TRCP 176.6(c).  Because new TRCP 176 permits a lawyer for the party to issue subpoenas, most subpoenas will probably be issued by the lawyer.  TRCP 176.4(a),(b).

      Form 4 is an example of the subpoena.  A subpoena for documents requires a notice to the nonparty and to the opponent, which is separate from the subpoena.  See Form 5.

 

      a.   Types of Notices

 

      Notice rules apply to both nonparty witnesses and all parties unless otherwise noted.

 

            (1)  For deposition with or without documents

 

            When a subpoena requires the nonparty to appear for an oral or written deposition, the notice must comply with TRCP 199.2 (for an oral deposition) or TRCP 200.1 (for deposition on written questions).  TRCP 205.1(c).

 

            (2)  For documents only

 

            When a subpoena requires a nonparty to produce documents without appearing for a deposition, the notice must provide: (1) the name of the person from whom production is sought, (2) a reasonable time and place for production, and (3) a description of the items to be produced.  TRCP 205.3(b).

 

      b.   Description of documents or things

 

      When the nonparty is required to bring documents or things, the notice must describe each item or category of items sought with reasonable particularity.  TRCP 205.3(b)(3); see TRCP 199.2(b)(5) (document request must comply with TRCP 205), TRCP 200.1 (b) (same).  If testing or sampling is requested, the notice must be sufficiently specific to inform the nonparty of the means, manner, and procedure for testing or sampling.  TRCP 205.3(b)(3).

 

c.   Time to serve notice

 

      To secure documents from a nonparty at the nonparty’s deposition, the party must give the nonparty reasonable notice of the date for production and may accompany the subpoena. Compare TRCP 199.2 (a) (production of documents at deposition), and TRCP 205.3(a) (production of documents from nonparty without deposition), with TRCP 199.2(b)(5) (requires 30 days' notice to parties to secure documents at deposition), and TRCP 200.1 (a) (requires 20 days' notice to nonparty to secure attendance at deposition on written questions).  One issue that should be considred is whether the three-day period for objecting to the time and place of an oral deposition in Rule 199.4 applies to document requests served with an oral deposition.  Rule 199.4 provides that a motion to quash or for protective order concerning the time or place of an oral deposition stays the deposition without need for court order if the motion is filed within 3 days after the notice is served.  Therefore, the three-day requirement does not apply to objections to the time and place for compliance for document requests served with deposition notices, but only to those concerning the time and place of the deposition itself.   Also recall that TRCP 199.1(c) (non-stenographic means  - video and audio) also requires at least 5 days notice before the deposition.

 

One alternative that will circumvent the “document only” 10-day notice rule for nonparties is to serve a subpoena for deposition with doucments and send a proposed business records affidavit with a letter to the deponent excusing his attendance if the records custodian can affirm the affidavit and attach the records.  See Forms 6 and 7.

 

      (1)  For deposition with or without documents

 

      The party must serve the notice before or at the same time it serves the subpoena compelling attendance.  TRCP 205.2.

 

      (2)  For documents only

 

      The party must serve the notice to produce documents or things from a nonparty under TRCP 205.3 at least ten days before the subpoena compelling production is served.  TRCP 205.2. Thus, under TRCP 205.2, a party who intends to secure documents from a nonparty without a deposition must serve the notice and subpoena separately.  First, the party must serve the nonparty and all parties with the notice of the documents it wants the nonparty to produce; and then, ten days later, the party must serve the subpoena on the nonparty.  The purpose of the amendment to TRCP 205.2 is to make sure a nonparty who receives a subpoena for documents does not produce them before the other parties have a chance to move for a protective order.

 

d.   Time to serve subpoena

 

      A subpoena must be served within a reasonable time before the date for compliance.  TRCP 1992(a), 205.3. The subpoena cannot be served before the notice.  TRCP 205.2.

 

      (1)  For deposition

 

      Generally, a subpoena for a nonparty to appear at a deposition (with or without documents) is served at the same time as the notice of the deposition.  Under the former rules, the party seeking a subpoena was required to serve the officer with proof of service of the notice of deposition before the subpoena could be issued.  Id. Thus, TRCP 176.4(c) codifies the customary practice of noticing a deposition and serving the subpoena at the same time. 

 

      (2)  For documents only

 

      When a discovery subpoena is served on a nonparty to produce documents but does not require the nonparty to appear for a deposition, the subpoena cannot be served with the notice of production; the subpoena must be served ten days after service of the notice.  TRCP 205.2.

 

e.   Necessity for compliance

 

      Service of a subpoena and the required fees is necessary to compel a nonparty to attend a deposition or to produce documents or other things.  TRCP 199.2(b)(5), 199.3, 200.2.

 

f.    Nonparty’s response

 

      A nonparty must respond to the subpoena and notice as required by TRCP 176.6. TRCP 205.3(d). The rules for a nonparty responding to a notice and subpoena to produce documents or other things are similar to the rules for a party responding to a request for production. 

 

      (1)  No appearance necessary

 

      A nonparty requested to produce documents or other things is not required to appear in person at the time and place of production unless the person is also subpoenaed to attend and give testimony.  TRCP 176.6(c).

 

g.   Organization of documents

 

      Documents must be produced either as they are (1) kept in the ordinary course of business or (2) organized and labeled to correspond to each particular request.  TRCP 176.6(c).

 

h.   Cost of document production

 

      The party who issues the subpoena requiring production of documents or other things must reimburse the nonparty for the reasonable costs of production.  TRCP 205.3(f).

 

i.    Failure to produce documents

 

      If a nonparty does not produce documents or other things requested by a subpoena, the court can hold the nonparty in contempt.  TRCP 176.8(a), 215.2(a), (c).

 

j.    Objecting to discovery subpoena

 

      (1)  Who can object

 

      The subpoena can be challenged by the person subpoenaed, a party to the suit or a third person whose records are sought.  TRCP 176.6(d), (e).

 

      (2)  Deadline to object

 

      Any person (party or nonparty) who objects to a discovery subpoena must serve objections or file a motion for protective order before the time specified for compliance in the subpoena.  TRCP176.6(d), (e).

 

      (3)  Effect of timely objection

 

      If a party or nonparty files a motion for protection or to quash, objecting to the time or place of a deposition within three business days after service of a notice of deposition, the objection stays the deposition until the motion can be determined.  TRCP 199.4.

 

      (4)  Making objections.

 

            (a)  To the subpoena

 

      To avoid being cited for contempt and having a writ of attachment (a type of civil arrest) issued, the subpoenaed person should file written objections or a motion for protective order alleging one or more of the following: 1) The subpoena was not dated and signed by a person authorized under TRCP 176.4 to issue subpoenas.  TRCP 176.1 (h). 2) The subpoena was not served by a sheriff, constable, or other person authorized by law.  TRCP 176.5. 3) There was no witness fee attached to the subpoena.  CPRC §22.001; TRCP 176.8(b); Kieffer v. Miller, 560 S.W.2d 431, 432 (Tex.App.--Beaumont 1977, writ ref’d n.r.e.). 4) At the time the subpoena was issued, the nonparty witness did not reside nor was her served within 150 miles of the county in which the suit is pending.  CPRC §22.002; see TRCP 176.3(a). 5) Only one subpoena was issued for two or more witnesses, including the summoned person.  TRCP 176.1(d).

 

            (b)  To undue burden

 

            The subpoenaed person should file objections or a motion for protective order to a subpoena that imposes an undue burden or expense.  TRCP 176.7. The objections or motion must be filed within a reasonable time before the deadline for complying with the subpoena. St. Luke's Episcopal Hosp. v. Garcia, 928 S.W.2d 307, 310 (Tex.App.-Houston [14th Dist.] 1996, orig. proceeding); Thomas & Betts Corp. v. Martin, 798 S.W.2d 366, 367-68 (TexApp.-Beaumont 1990, orig. proceeding) (4 months too long).  In determining whether a discovery subpoena would impose undue burden or expense, the following factors are relevant: (1) the quantity of materials subpoenaed, (2) the ease or difficulty of collecting and transporting the materials, (3) the length of time before the deposition, (4) the availability of the information from other sources, and (5) the relevance of the materials. St. Luke's, 928 S.W.2d at 310.

 

      (5)  Asserting privileges

 

      A witness commanded to produce documents or other things may withhold material or information claimed to be privileged but must comply with TRCP 193.3. TRCP 176.6(c). That is, the witness must withhold the information, serve a withholding statement and, when requested, serve a privilege log.  If an affected party (not the person subpoenaed) objects to production of documents by a nonparty because it would disclose the affected party's privileged information, the affected party must assert its objections according to TRCP 193.3.  The privilege claims must be asserted before the deadline for complying with the subpoena.  See St.  Luke's, 928 S.W.2d at 311 (privilege claims must be made before time for production or else they are waived).

 

      (6)  Moving for protective order

 

      A nonparty may file a motion for protective order under TRCP 192.6(b) before the time specified for compliance with the subpoena.  TRCP 176.6(e).  Cf. TRCP 176.6(f) for trial subpoenas which allow the filing up to the time and place specified.

 

      (7)  Burden to get ruling

 

      The burden to get a ruling is on the party who issued the subpoena. Oblinger v. Curry, 926 S.W.2d 832, 835 (Tex.App.-Fort Worth 1996, orig. proceeding).  TRCP 176.6(d) and 176.6(e), which require the subpoenaed person to object to a discovery subpoena or seek a protective order before the time specified for compliance, do not require the person to get a ruling before the time for compliance.  The party who issued the subpoena may move for an order any time after an objection is made or a motion for protection is filed.  TRCP 176.6(d), (e).

 

      (8)  Ruling on objections

 

      The court may sustain the objections or grant a protective order if the subpoena does not allow adequate time for compliance, the subpoena requests the disclosure of privileged material, or the subpoena imposes an undue burden or expense.  See TRCP 176.7. The court may impose reasonable conditions on compliance with a subpoena, including compensation to the nonparty for undue hardship.  Id.; see also TRCP 205.3(f) (party requiring production must reimburse the nonparty's reasonable costs of production).

 

k.   Copies for other parties

 

      The party obtaining the production must make the produced materials available to the other parties for inspection on reasonable notice.  TRCP 205.3(e). The obtaining party must furnish copies to the requesting party at that party’s expense.  Id.

 

7.   PREPARE COMPREHENSIVE AND EFFECTIVE INJUNCTIONS OR ALTERNATIVES SO THAT THERE IS SOMETHING LEFT WHEN YOU GET TO THE END

 

      Numerous property issues can arise that can necessitate imaginative or thoughtful injunctive and related relief in family law cases.  Obviously, if the primary or sole income producing asset of one or both spouses is a business that is primarily controlled by one spouse, the spouse not in control of the asset needs to be careful in agreeing to the usual limitation on injunctive relief set out in the Family Law Practice Manual, i.e. prohibiting payment of expenses, alienation of assets, and compensation being paid, etc. except “in the ordinary course of business,” since such a blanket authorization almost invites abuse.  One method of addressing the issue is to request the court to put in place a budget for the spouse in control of the property to live by enjoining monthly expenses in excess of the budgeted amount except by agreement or further court order with excess funds to be held in an interest bearing account to be released only on court order or by mutual agreement.  Your order should also require a monthly accounting of business and income expenses.

      Some circumstances may dictate the need for unusual injunctive relief.  There may be concerns that a spouse may attempt to prepay expenses, taxes, or debts in an effort to deplete community resources.  These concerns should be addressed with an appropriate injunction.  Rent, mortgages, health insurance, life insurance, and taxes are examples of expenses that could be potentially prepaid.  If these are concerns, ask the court to enjoin the opposing party from paying these obligations in advance of their due date.  Oftentimes domestic litigation occurs around the time that a tax refund is due.  Be sure to take this into account when seeking relief.  You may want this divided now, later, or applied to some obligation (like your fees).  Address it at the temporary orders hearing.  Don’t wait for the check to come.  Often the funds will disappear before you can obtain a hearing regardless of a restraining order.  If you are the non-moneyed spouse always put an injunction in prohibiting each party from filing married single, requiring a joint return, and requiring a division of a refund, if appropriate.

      In extreme cases you might desire the appointment of a receiver.  The court can appoint, at a temporary hearing, a receiver to manage and/or dispose of property and assets during the pendency of the family law case.  Texas Family Code Section 3.58(c)(5).  This is considered to be appointed to protect and manage the property of the parties.  Such an action should never be undertaken lightly and rarely will it be ordered by the court.  The appointment of a receiver has been described as one of the harshest remedies available and should be used only when no other less drastic remedy is available.  Rogers v. Rogers, 150 S.W.2d 139 (Tex.App.—Dallas 1951, no writ).  Since the courts have historically regarded appointment of receivers as a harsh remedy, it should only be used when there is a question of whether or not marital property is in danger of being lost or moved or materially injured.  Older cases seem to support the liberal view that gave a more relaxed criteria for appointing receivers and they really didn’t adhere to the requirement that the property needed to be in danger of being lost, moved or injured.  Those cases generally are as follows:

 

      1.   Hursey v. Hursey, 147 S.W.2d 968 (Tex.Civ.App.—Dallas 1941, no writ), receiver was appointed on wife’s general assertions that husband might mismanage the property, divert rent to his own use and fail to pay the taxes and insurance.

 

      2.   Sloan v. Sloan, 474 S.W.2d 272 (Tex.Civ.App.—Waco 1971, no writ), ex-husband had devised an elaborate scheme designed to deprive ex-wife of stock awarded to her in the divorce.  The appointment of a receiver was held to be within the discretion of the trial court.

 

      3.   Poston v. Poston, 572 S.W.2d 800 (Tex.Civ.App.—Houston [14th Dist.] 1978, no writ), found there was no conflict between Texas Civil Practice and Remedy Code Section 64.023 which requires a bond and Rule 695(a) which allows for the waiving of the bond because the trial court, in divorce cases, is vested with broad discretionary powers.

 

      The more conservative view, which is found in more recent cases, tends to apply this strict criteria in that only if property is in imminent danger of being lost, injured or destroyed and there is no other remedy available, will the court appoint a receiver.  The following cases point out that view:

 

      1.   Parness v. Parness, 560 S.W.2d 181 (Tex.Civ.App.—Dallas 1977, no writ), where the husband was denied his request for a receiver to sell the family home during the pendency of the divorce so that his temporary support would be reduced.

 

      2.   Readhimer v. Readhimer, 728 S.W.2d 872 (Tex.Civ.App.—Houston [1st Dist.] 1987, no writ).  In this case the trial court appointed a receiver without taking any evidence at the hearing simply because the wife had alleged that the community estate was going to suffer if the appointment was not made since the husband was undertaking to sell certain assets to meet his obligations of the temporary orders.  In reversing the trial court, the Appellate Court determined that the appointment of receiver should be made to preserve the property for both parties and not for the benefit of one party.  Further, the trial court does not have unbridled discretion in appointing a receiver and should only be done with evidence showing the property is in danger and that there is no other less harsh remedy available.

 

8.   EFFECTIVELY DEAL WITH ATTORNEY’S FEES – MAKE SURE YOU ARE PAID

 

      a.   Interim Attorney’s Fees

 

      You should not wait for final trial; try to get interim attorney’s fees at the temporary hearing.  If one party has better cash flow or control over the community funds, an order for interim attorney’s fees will help protect the disadvantaged spouse’s position.  The philosophy and practice regarding interim fees varies substantially from county to county as to the liberality or conservatism in awarding attorney’s fees.  As with all other issues at the temporary hearing, you must have all of your ducks in a row.  Here are some suggestions:

 

            1)   Proof of Need for Interim Attorney’s Fees

 

            If you request interim attorney’s fees, the next crucial step is to persuasively prove what amount of interim fees would be fair, reasonable and necessary.  Simply making a request for a specific dollar amount (i.e., I need $10,000) is not very persuasive.  Instead, it would be beneficial to have an organized presentation, and preferably, an exhibit.

            In an organized manner, you should develop testimony of the following:

                  (a)  Compare the resources of your client and resources of your opponent to pay attorney’s fees.  When possible, find out in advance what has been paid to the opposing counsel.  Also, try to identify a specific source of funds from which to pay interim fees.

 

                  (b)  Identify issues which complicate the case and necessitate extensive work such as:

 

                  (1)  hidden assets/accounts for income;

                  (2)  valuation questions;

                  (3)  characterization of property questions;

                  (4)  necessity for experts such as appraisers, psychologists, or other experts.

 

                  (c)  Identify the discovery needs of your case such as:

 

                  (1)  depositions to be taken;

                  (2)  documents to be reviewed;

                  (3)  interrogatories to be sent and answered.

 

                  (d)  Demonstrate difficulties you have experienced in getting documents/ information from your opposition.

 

                  (e)  Point out legal issues which require investigation, discovery and research.

 

      Prepare an exhibit which details an estimation of time and charges necessary for each described task.

 

      2)   When to Ask for Interim Attorney’s Fees

 

      Sometimes you may want to delay requesting interim fees until you have completed at least a minimum amount of discovery.  Obtaining tax returns, financial statements, balance sheets, bank account records, and other basic financial documents will assist you in determining exactly what you don’t know.  Additionally, with some basic discovery completed, it is easier to persuade the court as to what issues are in your case and why you need interim fees.

 

      b.   Attorney’s Fees at Final

 

      In addition to pleading for attorney’s fees, evidence must be presented to the fact finder to establish the reasonableness and necessity of attorney’s fees.  The reasonableness of attorney’s fees is a fact question which must be supported by competent evidence.  Morgan v. Morgan, 657 S.W.2d 484 (Tex.App.—Houston [1st Dist.] 1983, writ dism’d.).  Expert testimony, either by trial counsel or by another attorney, is necessary to support an award of attorney’s fees.  An expert on attorneys fees may present testimony as defined by the Texas Rules of Evidence.  “If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise.”  Tex.R.Evidence, Rule 702 (1998).  Have your client testify that you were retained to represent her in the matter before the court and that she agreed to pay you a reasonable fee for your services.  Merely having the client testify that she agreed to pay an attorney fee based on a certain dollar amount per hour is not sufficient to establish the reasonableness of the attorney’s fees.  Smith v. Smith, 757 S.W.2d 423 (Tex.App.—Dallas 1998, writ denied).

      When presenting evidence on attorney’s fees, it is important that you prepare ahead of time and don’t just wing it, no matter how many times you have presented testimony on fees.  Be sure to list yourself on any interrogatories requesting identification of expert witnesses.  In E.F. Hutton Company, Inc. v. Youngblood, 741 S.W.2d 363 (Tex. 1987), Mr. Youngblood’s attorney attempted to testify as to the reasonableness and necessity of attorney’s fees incurred on behalf of his client.  E.F. Hutton objected to this testimony based on the fact that the attorney had not designated himself as an expert in response to a discovery request.  The appellate court disallowed the award of attorney’s fees by the trial court based on failure to designate the attorney as an expert witness.

      Present expert testimony on attorney’s fees the same way you present testimony by other expert witnesses.  Present the expert’s qualifications.  Obtain the expert’s opinion.  Have the expert explain the reasons supporting the opinion.

 

9.   GET READY TO PROVE YOUR CASE

 

        The inventory, as roadmap to your property case, should be backed up by each document as well as personal and expert testimony of value necessary to prove up the contents of your inventory.  If it is all separate property, you should have all documents necessary to establish your position in admissible form, in your trial notebook in exactly the order that your inventory is in.  The Family Law Foundation has just this year promulgated its Predicates Manual, co-authored by Warrant Cole, Stewart W. Gagnon, and Steven H. Schweitzer, with references which should be in every practitioner’s liabrary and should be consulted regarding the appropriate method of predicating the admission of evidence.

      The following is a thorough, although not exhaustive, list of documents and evidence you should marshal to prove up your inventory to value presentation.

 

      a.   Real Estate

 

      The original purchase price is some indicator of value of real estate, but if the parties have held the property for any length of time, then reliability of the purchase price as evidence of value will diminish.  You should have the warranty deed, deed of trust, real estate lien note, closing statement, and financial institution records of payment.

      Tax appraisal value is also some indicator of value.  Since tax appraised values are revised on a regular basis, it may be more up to date than purchase price.  Tax appraised value, however, is often lower than the actual market value of the property.  This varies among jurisdictions.  Experts can be helpful in providing local rules of thumb.

      A real estate agent may also be a source for information regarding the value of real estate.  Real estate agents will be familiar with the selling prices for real estate in the area in which they sell properties.  A real estate agent will also know what factors impact positively or negatively the selling price of real property in the particular area.  Many real estate agents will often do a market analysis of real property in a divorce often with the hope of marketing the property post divorce.  The parties could agree to use a real estate agent to determine the value of a parcel of real estate or a marital residence.  The real estate agent may not have the requisite expertise to give an opinion regarding the value of real estate.

      The most reliable method for determining the value of real estate, short of selling the property, is having a real estate appraisal performed by a professional real estate appraiser.  A “market analysis” may also be utilized prepared by real estate brokers, though its value and admissibility may be questionable.  Another cost saving measure would be to agree upon the choice of an appraiser and stipulate that the value arrived at by the appraiser shall be the value for purpose of the divorce.  This type of agreement is not without risk.  If no such agreement is made, it is likely that two appraisers will be employed.  The cost of real estate appraisals for residential property currently ranges from $150.00 to $500.00 per property plus additional expense for time spent testifying in regards to the appraisal.

      As with the valuation of all assets, it is important that the attorney know how the expert arrives at the opinion of value of real property.  An appraisal manual discusses the issues as follows:

 

      In assignments to estimate market value, the ultimate goal of the valuation process is a well-supported value conclusion that reflects the appraiser’s study of all factors that influence the market value of the property being appraised.  To achieve this goal, an appraiser studies a property from three different viewpoints, which correspond to three traditional approaches to value.

 

            1.   The value indicated by recent sales of comparable properties in the market—the sales comparison approach.

            2.   The current cost of reproducing or replacing the improvements, minus the loss in value from depreciation, plus land value—the cost approach.

            3.   The value of the property’s earning power based on the capitalization of its income—the income approach.

 

American Institute of Real Estate Appraisers.  The Appraisal of Real Estate, 62 (9^th ed. 1987).  This approach was cited with approval by the Texas Supreme Court in Religious of the Sacred Heart of Texas v. City of Houston, 836 S.W.2d 606, 615-6 (Tex. 1992).  Comparable sales is only one of the factors used to determine the market value of real estate.  This same approach translates to other types of property being valued.

 

      b.   Planes, Boats and Automobiles

 

      For assets such as automobiles, airplanes and boats there are “blue-books” that publish values.  Often these publications list loan value, trade-in value and retail value.  Given the definition of “market value,” the appropriate value to use is the retail value.  Some adjustments should be made based on the condition of the asset.  For example, the property make have been exposed the elements without being properly maintained and may have a value well below the “blue-book” value.

      If your client is satisfied with the “blue-book” value of the asset, then attempt to get the other party to stipulate to the “blue-book” value of the property.  Otherwise, you will need to prepare expert testimony regarding the valuation (the “blue-book” value is hearsay).  Any expert would be a local used car dealer.

      Always have your expert make a visual inspection of the property.  Maybe the boat has a hole in it.  Imagine your embarrassment and your client’s reaction when your expert learns of significant factors that negatively impact his opinion of value, for the first time while he is being cross-examined in front of the trier of fact.  Again, know your case and make sure that your expert knows his portion of the case.

 

      c.   Mobile Homes

 

      As in the case for automobiles, boats, and airplanes there is a “blue-book” quoting the value of mobile homes.  Use the same methods for determining value and presenting evidence of value as for a motor vehicle.  The mobile home will only have value as personal property if it can be removed from the land.

      The mobile home may, however, have become so much a part of the real estate that it may be considered an improvement to real estate and not personal property.  Whether the mobile home is no longer mobile and whether it should be treated as an improvement to real estate may be a matter of dispute.  However, if the wheels and axles have been removed and rooms have been constructed onto the original structure then it is likely that the mobile home has become part of the real estate.  In such a situation, the mobile home’s value will be an improvement to the real estate and will be part of the determination of the value of the real estate.  The appraiser that determines the value of the real estate will need to treat the mobile home as an improvement to the real estate and treat it as an element of the value of the real estate in the same manner that would be used with any other structure built upon and permanently affixed to the land.

 

      d.   Business

 

      As with all asset valuation, one must consider the various grades of evidence of value as set out above.  If there is a market for the business, then evidence of the market value of the property is to be used.  Sometimes there is virtually no market for a certain type of business or the other comparable transactions are conducted privately with little or not public disclosure of the terms so that they do not provide information to allow comparison.  In such cases some of the other grades of evidence must be explored.  Intrinsic value and value to the person have application in the context of a business appraisal, but replacement cost is not applicable.

      Books and many articles have covered the subject of determining the value of a business.  In this article we will cover the general concepts for business appraisal.  In this area of valuation, it is important to prudently select your business appraiser.  The American Society of Appraisers, the Institute of Business Appraisers and Technical Advisory Service for Attorneys are good places to begin the search for a business appraiser.  One can also rely on other practitioners in the community to recommend an expert.  A CPA who appraises businesses and has done forensic work in the past would be an excellent choice as an appraiser.  The attorney needs to spend time with both the client and the appraiser, so that the attorney full understands the business and the issues that relate to the determination of the value of the business.  Further, the attorney needs to understand completely how the appraiser calculated the value of the business so that the attorney can produce the evidence that will support the experts opinion and so that the attorney will understand how to explain the appraisal to the trier of fact.

 

      1.   Revenue Ruling 59-60

 

      The starting point for the determination of the value of a closely-held business is Revenue Ruling 59-60.  Revenue Ruling 59-60 was issued to give guidance  to the valuation of a closely-held corporation for determining the gross estate for estate tax purposes, but the factors set out in Revenue Ruling 59-60 should be considered in every business evaluation.  The factors set out in Revenue Ruling 59-60 are as follows:

 

            1.   The nature of the business and the history of the enterprise from its inception.

            2.   The economic outlook in general and the condition and outlook for the specific industry in particular.

            3.   The book value of the stock and the financial condition of the business.

            4.   The earning capacity of the company.

            5.   The dividend-paying capacity.

            6.   Whether or not the enterprise has goodwill or other intangible value.

            7.   Sales of the stock and the size of the block of stock to be valued.

            8.   The market price of stocks of corporations engaged in the same or a similar line of business having their stocks actively traded in a free and open market, either on an exchange or over-the-counter.

 

      There are several categories of methodologies for the valuation of businesses.  The methods utilized by business appraisers in determining the value of a business are the income method, the market method, the cost/asset method and a few others.

 

      2.   Goodwill; Non-competition

 

      There are certain issues that may not be considered when determining the value of the business.  In determining the value of the business, the trier of fact is not to consider personal goodwill or the value of time and labor to be expanded after the divorce.  Texas Pattern Jury Charge- Family, PJC 203.2(1998).  The trier of fact may, however, consider commercial goodwill that is separate and apart from personal goodwill.  Id.  The Pattern Jury Charge relies on the Texas Supreme Court opinion in Nail v Nail, 486 S.W.2d 761 (Tex. 1972) and its progeny to support the instruction to the jury that personal goodwill not be considered in the valuation of a business.  In Geesbreght v. Geesbreght, 670 S.W.2d 427 (Tex.Civ.App.—Fort Worth 1978, writ dism’d), the Court of Appeals indicated that the entity itself may have goodwill separate and aprt from the personal goodwill of the individual and that commercial goodwill could be included in the value of the business.

      To determine whether a business has goodwill that would be subject to division in the divorce, the trier of fact must apply the two-pronged test set out in Finn v. Finn, 658 S.W. 2d 735 (Tex.App.—Dallas 1983, writ ref’d n.r.e.).

 

      First, goodwill must be determined to exist independently of the personal ability of the professional spouse.  Second, if such goodwill is found to exist, then it must be determined whether that goodwill has a commercial value in which the community estate is entitled to share.

 

Finn at 741.  It should be noted that in Finn the husband attorney’s partnership agreement defeated the wife’s attempt to be compensated for the value of commercial goodwill of her husband’s partnership interest.  Id.  The partnership agreement did not allow husband to be compensated for the commercial goodwill of the partnership in the event of his withdrawal.  Id.  Since husband had no right to be compensated by the partnership for the value of the firm’s goodwill, it had no commercial value to him.  Id. at 742.  Therefore, the firm’s goodwill was not an element of the value of husband’s partnership interest in which the community estate was entitled to share.  Id.

 

      The Texas Supreme Court in a non-family law case endorsed the Court of Appeal ruling in Geesbreght.  Salinas v. Rafati, 948 S.W.2d 286 (Tex. 1997).  According to the Supreme Court the earning capacity of a partner is not a divisible partnership asset.  Id. at 290.  Although Nail, Geesbreght and Salinas all involved professionals, the exclusions of personal goodwill has also been applied in cases involving non-professionals.  See Rathmell v. Morrison, 732 S.W.2d 6 (Tex.App.—Houston [14^th Dist.] 1987, no writ); Finch v. Finch, 825 S.W.2d 218 (Tex.App.—Houston [1^st Dist.] 1992, no writ).

      In Rathmell the Court of Appeals suggested that the jury should also be instructed not to consider the spouse’s willingness not to compete with the business.  Rathmell, 732 S.W. 2d at 18.  Although the portion of the Rathmell instruction regarding the spouses willingness not to compete is included in the comments to PJC-203.2, it was not included in the body of the PJC0-203.2.  The instruction, however, would seem appropriate considering that the trial court cannot order a spouse not to compete as part of a divorce.  Ulmer v. Ulmer, 717 S.W.2d 665, 667 (Tex.App.—Texarkana 1986, no writ).

 

      3.   Ajustments

 

      Often the community estate does not own the entire business.  If the business has owners, shareholders, or partners other than the parties to the divorce, adjustments might need to be considered in determining the value of the portion of the business owned by the community estate.  For example, if the community owns a controlling number of share in a corporation, then it may be appropriate to adjust the market value of each individual share by a control premium.  A control premium may be added to a controlling block to reflect that “[t] per share value of a minority interest is less than the per share value of  a controlling interest.”  Estate of Salsburg v. Cimmissioner, 34 T.C.M. 1441 (1975).  In addition, adjustments may be appropriate based on marketability and minority discount.  If the business interest involved in the divorce is less marketable than an otherwise comparable business interest then there should be a downward adjustment due to the lower liquidity.  If the business interest is a minority interest then there may be a need for adjustment depending on the degree of control possessed by the minority interest in the subject business entity.  The foregoing adjustments are discussed in more detail in Patrice Leight Ferguson, CPA, J.D.’s article entitled, “Business Valuations in Divorce,” presented at the 1995 Family Law Course.

 

      e.   Franchises

 

      A franchise is a contract that allows an individual or business entity (a franchisee) to market goods or services under the name of another business entity (a franchisor).  All of the same elements considered in valuing an independent business should be considered in valuing a Franchise.  In addition, the attorney and the expert should carefully study the Franchise Agreement and history of the franchisor and make appropriate adjustments.

 

      f.    Retirement Benefits

 

      For most middle class clients, the community asset with the greatest value is the Retirement Benefits of one or both spouses.  There are basically three types of Retirement Benefit Plans:

 

      1.   The Defined Contribution Plan

 

      This type of plan will pay the employee a certain amount periodically following retirement.  The amount of the periodic payment is determined by a formula that normally includes years of service, salary amount, age, etc.  A surviving spouse option may also be available that will allow the employee to elects to take a small periodic payment to insure that her spouse will continue to receive payments if the employee spouse predeceases.  The expert will need to consider mortality, potential forfeiture of benefits, and current interest rates in determining the value of the Defined Benefit Plan.  An actuary or CPA will normally be able to determine the value of the Defined Benefit Plan.  Make sure that the expert that you hire has experience in valuing Defined Benefit Plans.  It would also be helpful to contact an insurance agent and try to determine the cost of a single premium annuity with benefits identical to the Plan that is being valued.

 

      2.   The Defined Contribution Plan

 

      This type of plan does not provide a specific amount of benefit upon retirement, but involves the investment of employee compensation (generally tax-deferred) into individual accounts for the benefit of the specific employee.  Often the employer will make additional contributions to the employee account.  Often the employee is allowed to control the investment of the Plan funds.  Often the Plan funds are invested in employer stock and profit sharing plans.  Upon termination, the employee fund is paid by lump sum or installments to the employee.  If the termination is prior to retirement age the employee may also roll the funds over to another tax deferred account to avoid paying tax and penalties for early withdrawal of the funds.  The Defined Contribution Plan account is held in the employees name and statements of the balance of the account are regularly provided to the employee.  Thus the value of a Defined Contribution Plan is normally fairly easily calculated.

 

      3.   A Hybrid Plan

 

      This type of plan is a combination of the Defined Benefit Plan and the Defined Contribution Plan.  The Texas Employee Retirement System (ERS) Plan is such a plan.  At retirement the employee has the option of taking a lump sum payment that represents the employee contributions plus income on those contributions or an annuity payable to the employee that is based on months of service and the salary of the employee for a period of time immediately prior to retirement.  With the ERS Plan the election is that of the employee.  Depending on the election of the employee the value of the benefit may vary greatly.

 

      4.   What Portion of the Retirement Benefits?

 

      When valuing Retirement Benefits, always bear in mind that only the portion of the benefit earned during marriage is divisible upon divorce.  Taggart v. Taggart, 552 S.W.2d 422,424 (Tex. 1977).  Additionally, when value of the community retirement benefits is at issue, “the benefits are to be apportioned to the spouse based upon the value of the community’s interest at the time of the divorce.  Berry v. Berry, 647 S.W.2d 945, 947 (Tex. 1983).  A CPA and/or an actuary should be able to determine the value based on information received from the party’s employer or the trustee of the party’s retirement plan.  As in other situations make sure that the expert is in fact an expert and has experience valuing retirement benefits for the purposes of testifying regarding value in divorce cases.

 

      5.   Do Not Trade Retirement Benefits for Hard Assets

 

      When settling a case or requesting a division of a marital estate by the court, it is important to bear in mind that retirement benefits should not be traded dollar for dollar for hard assets.  A house with a net value of $200,000 can be sold shortly following the divorce, but the retirement benefits may be unavailable or may result in severe tax penalties if accessed shortly following the divorce.  If the retirement benefits will not be available until some time in the future their value should be discounted.  In addition, defined contribution accounts are often tax deferred and the potential tax upon withdrawal and penalties for early withdrawal should be taken into account in determining the value of the retirement benefits.  At least one Court of Appeals, has opined that the potential tax impact of early withdrawal of retirement benefits or the taxes that will be due on tax deferred retirement benefits need not be considered by the trial court, because such consideration would require speculation and surmise regarding whether or not there will be an early withdrawal or the future tax bracket of the party awarded the benefits.  Grossnickle v. Grossnickle, 935 S.W.2d 830, 847-8 (Tex.App.—Texarkana 1996, writ denied).  This opinion would seem to ignore the reality that there will be some taxes due on the tax deferred benefits, although there may be some question of exactly what the tax will be.  The problem can be avoided by dividing the retirement benefits proportionately along with the other significant assets, but sometimes that is not what the client wishes to do.  It is important to advise the client about the adjustments to value discussed so that they can make an informed decision of how to divide the assets.

      If the client will need cash flow post divorce, but there does not seem to be a way to provide it, it may be possible to provide a cash flow from tax deferred retirement accounts without paying the ten percent penalty for early withdrawal.  Pursuant to §72(t)(2)(A)(iv) “[d]istributions that are part of substantially equal periodic payments (not less frequently than annually) made for the life (or life expectancy) of the employee or the joint lives (or joint life expectancies) of such employee and his designated beneficiary.”  Even if the penalty for early withdrawal can be avoided, there will still be need to pay income tax (at the client’s applicable rate) on the withdrawals.  Get the advice of a CPA and/or a tax attorney when exploring the potential use of tax deferred accounts for cash flow prior to the client attaining 59 1/2 years of age.

 

      g.   Intangible Assets: Copyrights/ Patents/ Service Marks/ Trade Marks/ Trade Names/ Trade Secrets

 

      These intangible assets may have value of their own or they may impact the value of a business entity owned by one of the parties that owns the intangible asset or the rights to use the asset.  The determination of the value of these types of intangible assets is always difficult and it is important to consult an attorney who specializes in this area of law.  An intellectual property specialist should also be able to assist in locating an expert witness to testify regarding value.  James E. Farris’ article entitled, “Unusual assets: patents, licenses, royalties,” presented at the 1993 Advanced Family Law Course.

 

      1.   Copyright

 

      A copyright owner has the exclusive right to reproduce, distribute, publicly perform and display, and to prepare derivative works for a limited time.

 

      2.   Patent

 

      A patent is a document issued by the United States Patent office that grants the right to manufacture, use and market an invention or discovery for a specific period of time.

 

      3.   Service Mark

 

      The Texas Business and Commerce Code defines a service mark as a “word, name, symbol, device, slogan or any combination thereof which, whether registered or not, has been adopted and used by a person to identify his services and distinguish them from the services of others, and includes the titles, designations, character names, and distinctive features of broadcast or other advertisement.  Tex. Bus. Com. Code, §16.01.

 

      4.   Trademark

 

      The same code section defines a trademark as a “word, name, symbol, devise, slogan, or any combination thereof which, whether registered or not, has been adopted and used by a person to identify his goods and distinguish them from the goods manufactured or sold by others.”  Id.

 

      5.   Trade Name

 

      A trade name “includes an individual name, surname, firm name, corporate name, and lawfully adopted name or title used by a person to identify his business, vocation, or occupation.  Id.

 

      6.   Trade Secret

 

      According to the Texas Supreme Court, “[a] trade secret is any formula, pattern, device or compilation of information which is used in one’s business and presents an opportunity to obtain an advantage over competitors who do not know or use it.”  Computer Associates International, Inc. v Altai, Inc., 948 S.W.2d 453, 455 (Tex. 1994).  To be a protected interest, the trade secret must in fact be secret.  H. E. Butt Grocery Company v. Moody’s Quality Meats, Inc., 951 S.W.2d 33, 35 (Tex. App.—Corpus Christi, 1997, writ denied).

 

      h.   Crops/Timber/Livestock

 

      If your client owns crops, timber and livestock, it is likely that the client has some experience in buying and selling such assets.  Hence, the client is often very helpful in determining the value of such assets.  These types of assets are bought and sold regularly and there should be a local market for such assets.  Additionally, there should be available local publications that list the recent market prices for similar assets.  A local auctioneer would also be helpful in determining the value of such assets.

 

      i.    Show Animals

 

      Many people raise, breed and show cats, dogs, horses, etc.  Just like with owners of livestock, these clients should be very helpful in determining the value of the animals in question.  In addition, it should be considered whether the animals should be valued separately or whether they should be valued as a component to a business enterprise.  Such a determination will depend on the particular circumstance.  These are various organizations that set rules and register such animals and these organizations would be a valuable source for locating an expert regarding valuation of such animals.

      Although you may want the expert to testify before the trier of fact, some cost might be saved by deposing your own expert so your client does not pay him to sit around in the hall at the courthouse, although most of the time this can be prevented by making arrangements to call witnesses out of order to accommodate schedules.

 

      j.    Art, Antiques and Collectibles

 

      People collect many things.  For virtually everything people collect an expert can be located to appraise the collection.  Ideally the appraiser would have expertise in the area of the specific types of items in the collection being appraised.  If the collection is large and diverse, decisions must be made as to whether to use an appraiser with general knowledge to appraise the entire collection or multiple appraisers with more specialized knowledge regarding various areas of the collection.  The perceived value of the collection may dictate what budget is appropriate for the development of expert testimony regarding the collection.

      When performing the appraisal, the appraiser should consider the value of the collection as a whole as well as the value of individual items.  Sometimes a collection may have a value greater than the sum of its parts.  Other times an individual piece may be more marketable than the collection.

      The appraiser should bear in mind the same three traditional approaches to value as used in the valuation of other types of property such as real estate:

 

            1.   The sales comparison approach:

                  If comparable items are being offered for sale or have been sold, research the pricing and reported sales;

 

            2.   The cost approach:

                  Cost to reproduce (if possible), less depreciation, or replace the item; and

 

            3.   The income approach:

                  Would only apply if the item is income producing.

 

      k.   Household Goods and Clothing

 

      It is unnecessary to prove “market value” of household goods and clothing.  There is an exception to the general rule, an that is that one must prove market value or establish prima facie that there is no market value when it comes to second hand household goods, clothing and personal effects.  Crisp v. Security National Insurance Co., 369 S.W. 2d 326, 329 (Tex. 1963); Rosenfield v. White, 267 S.W.2d 596, 599 (Tex.Civ.App.—Dallas 1954, writ returned n.r.e.).  In such cases, the appropriate grade of evidence of value is the value to the owner.  Id.

      Normally personal items have very little value, although there may be an area of contention between the parties.  Carefully weigh with the client the cost of developing evidence, other than the client’s inventory and appraisement before the exchange of inventories with the other side.

 

      l.    Employee Benefits (Other than Retirement Benefits)

 

      Employers offer employees various benefits in addition to salary, vacation, continuing education and retirement benefits.  Many employers offer employees “stock options.”  A “stock option” is the right to buy stock in the future at a certain price which is anticipated to be below the market price at the time.  Some employers provide “stock appreciation rights.”  “Stock appreciation rights” pays the employer the difference between the stock price on the date of the grant and on the day of exercise.  Another type of benefit is the “Phantom Stock.”  The employee is treated as having acquired stock and the employer pays the difference in price between the day of grant and the day of exercise.

      Many employers pay bonuses.  Bonuses may be based on individual, group or company performance.  Bonuses may be paid monthly, quarterly, annually or irregularly.

      The difficulty in valuing these assets comes when they are granted, vested or exercised outside of the period of the marriage.  The problem can arise when a stock option is granted prior to the marriage or when a benefit will not be exercised until after the date of divorce, because the benefit is unmatured or non-vested.  Care must be taken to analyze the purpose of the benefit.  Is the benefit intended to compensate for past service or to insure future service?

      The San Antonio Court of Appeals held that unvested stock options granted during the marriage are “a contingent interest in property and are a community asset subject to consideration along with the other property in the disposition of the parties’ estate.”  Bodin v. Bodin, 944 S.W.2d 380 (Tex.App.—San Antonio 1997, no writ).  To the San Antonio Court of Appeals knowledge, “every community property state that has considered this issue has agreed with the conclusion of law” reached by the court in Bodin.  Id. at 381.

      The Bodin opinion does not, however, address the issue that the stock option is likely contingent on continued services that one of the parties may provide her employer post divorce.  Compensation for services post divorce is not community property.  It would seem that if the right to exercise the stock option is contingent on services to be performed in the future, then at least a part of the stock option is compensation for future services.  Therefore, a portion of the value of the stock option is based on separate property (post divorce compensation) of one spouse.  The various formulas adopted in other jurisdictions is thoroughly discussed in James E. Farris’ article entitled, “Unusual assets: patents, license, royalties, intellectual properties, incentive stock options and certain employer employee rights,” presented at the 1993 Advanced Family Law Course.

      Given the rate of increase in some stocks, especially in the high tech industry, stock options may be a very valuable asset.  The first case relied on by the Court in Bodin is In Re the Marriage of Hug, 154 Cal. App. 3d 780, 201 Cal. Rptr. 676, 678-81 ([1^st Dist.] 1984).  Although the Court treated the stock options as community property, they used a Berry type formula to determine what portion was community property.  Review the cases cited in the Bodin case and the theories discussed in Jim Farris’ article and determine which theory is best for your client.  Given the current sate of the law in Texas on stock options, there is plenty of room for creative lawyering.

 

      m.  Tort Claims

 

      Torts, such as fraud on the community, spoliation of evidence, and assault and battery, should be listed and valued in the same manner as any other tort action.

 

10. PREPARE PROPER JUDGMENTS AND RELEASES AND FILL YOUR DESK DRAWER WITH CHECKLISTS

 

      Because of the proliferation of tort claims and other causes of action in family law cases such as breach of fiduciary duty, conversion, fraud, etc., it is advisable to get a release in the event of settlement of the divorce action, where additional causes of action were plead by one spouse against the other.  Because a separate action for these actions might be brought after the divorce, it is prudent for the attorney to prepare and secure a full release.

      At the very least, attorney should place language in the decree releasing the spouse of liability for the additional causes of action.

      As to the decree, it is imperative that it be drafted so as to be enforceable by contempt as far as possible as it relates to the property.  Here are the basic rules on drafting to ensure contempt powers:

 

a.   Language must be clear, specific, and unambiguous

 

To be enforceable by contempt, the drafting attorney must remember the granddaddy of all contempt cases in Texas, Ex Parte Slavin 412 S.W.2d 43 (Tex.1967) which set the standard for orders sought to be enforced:  the language of the underlying order must be clear, unambiguous, and subject to only one interpretation.  Id, at 44.  As the Supreme Court stated:

 

“It is an accepted rule of law that for a person to be held in contempt for disobeying a court decree, the decree must spell out the dates of compliance in clear, specific, and unambiguous terms, so that such person will readily know exactly what dates or obligations are imposed upon him.  (citing cases).”

 

Id. at 44.  The underlying reason for this rule is that:

 

“The rights of parties under a mandatory judgment whereby they may be punished as contemnors for a violation of its provisions, should not rest upon implication or conjecture, but the language declaring such rights or imposing burdens should be clear, specific and unequivocal so that the parties may not be misled thereby.  (citing cases).”

 

      b.   The language must be command language directed unequivocable to the alleged contemnor.

            Ex Parte Nash, 595 S.W.2d 571, 572 (Tex.Civ.App.—San Antonio 1979, no writ) provides that the order which the obligee seeks to enforce, must contain a clear command to pay, and that “It is decreed that the children be and are hereby are returned to Applicant…on Saturday October 27, 1979…” was not sufficient command language.  See, Ex Parte Padron, 565 S.W. 2d 921, 921 (Tex. 1978).  “Decreed” means the same as “ordered”.  Ex Parte Snow, 677 S.W.2d 147, 149 (Tex.App.—Houston (14^th Dist). 1984, no writ).

 

c.   To be enforceable, the order should spell clearly and specifically each element to be enforced.

 

(1)  The elements:

 

WHO

            DOES WHAT

            TO WHOM

            WHEN

            WHERE

            HOW

            HOW LONG

            HOW MUCH

WHY (“as temporary support”) (“as payment for Respondent’s community property interest in Petitioner’s retirement plan herein awarded to Petitioner”)

 

      (2)  Areas wherein contempt as an enforcement option may lie

 

(a)  Personal Property

 

1)   Legal Principles

 

§9.009 of the Texas Family Code (TFC) provides:

 

“To enforce the division of property made in a suit for divorce or annulment, the court may make an order to deliver the specific existing property awarded, whether or not of especial value, including an award of an existing sum of money or its equivalent.”

 

            §9.011 TFC provides:

 

“An award of the right to receive installment payments or a lump-sum payment due on the maturation of an existing vested or nonvested right to be paid in the future may be enforced by the remedies provided by this subchapter.  The subsequent actual receipt by the non-owning party of property awarded to the owner creates a fiduciary obligation in favor of the owner and imposes a constructive trust on the property for the benefit of the owner.”

 

            To enforce these rights, §9.012 TFC provides the following distinction:

 

“(a) An order requiring delivery of specific property, or an award of a right to future property, may be enforced by contempt.  (b) An award of a sum of money in a decree of divorce or annulment, payable in a lump sum or in future installment payments in the nature of debt, other than that in existence at the time of the decree or as provided in §9.011 of this code, is not enforceable by contempt.  (c) This subchapter does not detract from or limit the general power of a court to enforce its orders by appropriate means.”

 

            Therefore, to make the order to deliver specific property enforceable by contempt, care must be taken by the practitioner to command that items of personal property be delivered to a party at a particular time, place, and by what manner of delivery, and should specifically name the items to be delivered in order to be enforceable.  Remember that pursuant to §9.001(c) TFC the trial court has a two (2) year period in which it retains the power to effectuate delivery of personal property awarded by motion to enforce its award.

            It cannot, however, modify a previous order to alter the award of property.  Pierce v. Pierce, 850 S.W.2d 193 (Tex.App.—El Paso 1993, writ denied), but may clarify (TFC §9.006).  Of like affect is the duty to provide specific instruments to effectuate a transfer of interest ordered by the court.  If the alleged contemnor is merely directed by the decree to deliver “all instruments” necessary to convey his interest in an asset subject to a titled asset, such a directive is insufficient to support a civil contempt finding.  Ex Parte Choate, 582 S.W.2d 625 (Tex.Civ.App.—Beaumont 1979, no writ).

            The appropriate drafting technique is to name the exact instrument or instruments the obligated party is required to execute and preferably attach the document to the decree or clarifying order.  Further, the Texas Family Code authorizes the decree to be used as a muniment of title to transfer property interest.  The careful practitioner will include the provision authorizing the filing of the decree as a muniment.  The complete legal description of any real property must be set forth in the decree for such purpose.

 

(b)  Caveat:  if an instrument of transfer is necessary, it is very advisable to include the following language:

 

“This decree shall serve as a muniment of title to transfer ownership of all property awarded to any party in this final decree of divorce.”

 

      Attached to this document are Form 8 and 9 which are checklists easily filled in as soon as you get back to the office – hand to your secretary and have a final order prepared shortly thereafter.  “pnam” means Petitioner’s name and “rnam” Respondent’s name.  Have forms like these at your disposal to fill out as soon as you get back to the office before you forget what the Judge said, can’t read your writing, or lose your briefcase with your notes in it.

 

CONCLUSION

 

      Hopefully these few ideas and little tidbits will help to organize your practice and prepare your office for effectively dealing with the property case.