Issue No. 86
August 31, 2018
In this issue....

  • Hate in the Courtroom
  • Democratic Candidate Profile: Janice Berg
  • Royal Walker Moore (1938 - 2018)
  • What Trial Judges Cannot Do

Before The Mongoose , there was the Law Fax

I published a legal newsletter for Galveston County from 1995 through 2001 called the Law Fax . I recently found several years worth of this newsletter and they brought back a lot of memories. I will soon post all of the issues of that newsletter.
One article I wrote in January 2000 certainly tells us how far women lawyers have come. As recently as 20 years ago, female attorneys were sent home in Galveston County if they showed up in court wearing pants. This story also shows that I was somewhat of a smart ass way back then (as I totally made up the part about men wearing skirts).

New Dress Code for the 306 th
Judge Susan Baker has announced a new dress code for her 306 th Family District Court. Previously, Judge Baker’s rule was that women lawyers could not wear pants in her court. Baker will now allow female attorneys to wear pant suits as long as the pants and jacket match. Baker says that male attorneys can wear skirts so long as they have shaved their legs and wear panty hose. Miniskirts must cover the bottom when one bends over. Left unanswered are serious sartorial questions such as: must women’s slacks be the same color as her jacket or can they be a color that goes with or complements the jackets hue? Male lawyers, for example, often wear navy jackets with tan or grey slacks.
Supervised Visitation

Click here to download a PDF chart of the supervised visitation providers in the Houston area. This chart was updated by Caitlin McGregor in my office this month. Please send any additions or corrections to
Law Office Dog Stars in New Firm Video

I would rather hang out with dogs or little kids than most adults I know. Certainly, my family’s life is enriched by the four dogs at home and the two who live at my office (not to mention our horses, goats, bird and pet rats). The two big, sweet rescue dogs at my office are very well taken care of and benefit from the fact that my building has a large backyard. Of course, in the heat of summer, the office dogs, Simon and Oreo, spend most of the time inside with my staff and very often greet visitors. I have begun to make videos explaining various aspects of family law. My premiere video explains what happens to the family residence during a divorce and we enlisted Oreo to help. It was simply too much to have both dogs in the same video and I suspect Simon will get his shot at stardom in the near future. Click here to view my video.
I may not win every case (even if in my heart I expect to). I just want an efficient system in which my client gets a fair hearing before a judge who works hard, knows the law, and does not play favorites. I also expect judges to appoint qualified amicus attorneys who zealously look after children (and who actually personally visit their minor clients in their homes). Is that asking too much? Stay tuned.
Greg Enos
The Enos Law Firm
The Enos Law Firm
  17207 Feather Craft Lane, Webster, Texas 77598
 (281) 333-3030
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Hate in the Courtroom
Former Harris County Republican chair, Jared Woodfill, is still spreading his “Christian” version of hate and prejudice, and wasting the precious time of a family court where the judge is almost always missing in action. Woodfill is still pursuing a five year old lawsuit in Judge Lisa Millard’s court against the City of Houston to stop the city from offering spousal benefits to employees’ same sex spouses.  Click here to read the Motion for Summary Judgment recently filed by Woodfill in this case.

The motion actually argues:

If Obergefell and Pavan require equal spousal benefits for same-sex and opposite-sex married couples, then the defendants must comply with [Tex. Family Code Sec.] 6.204(c)(2) by withdrawing spousal benefits from all city employees.

Woodfill, in his desire to keep benefits from same-sex couples, would tell a male Houston Police detective that his female wife cannot be covered by health insurance through the city. This is just like arguing that if “those people” are allowed to use the restrooms at City Hall, then the City should shut down all restrooms for everyone. Woodfill is even asking the court to force city employees to pay back benefits they have received in the last years for their same sex spouses or domestic partners.
I predict that Judge Lisa Millard might show up for once in the 310th on October 11 when Woodfill's motion is set for hearing just to make it clear to her dark overlord, Steven Hotze, that she knows where her political support comes from.

Out Smart magazine recently wrote this about this lawsuit:

The motion for summary judgment in Pidgeon v. Turner, a five-year-old lawsuit challenging the benefits, states that the city should not subsidize same-sex marriages because gay couples cannot produce offspring, “which are needed to ensure economic growth and the survival of the human race.”

The motion also asks Republican Judge Lisa Millard, of the 310th District Family Court, to order the city to “claw back” taxpayer funds spent on the benefits since November 2013, when former Mayor Annise Parker first extended health and life insurance coverage to same-sex spouses. The court filing suggests that to comply with both state and federal law, the city should eliminate all spousal benefits, including benefits for opposite-sex couples.

The motion for summary judgment was filed July 2, 2018 by Jared Woodfill, an attorney for Jack Pidgeon and Larry Hicks, two Houston taxpayers who initially brought their lawsuit in December 2013. .... In his motion for summary judgment, Woodfill asserts that although the U.S. Supreme Court ruled in favor of marriage equality in Obergefell v. Hodges in June 2015, that decision does not require the city to treat same-sex couples equally.

“Obergefell does not require taxpayer subsidies for same-sex marriages — any more than Roe v. Wade requires taxpayers subsidies for abortions,” Woodfill’s motion states.

Woodfill is President of Dr. Steven Hotze's Conservative Republicans of Texas, which is listed by the Southern Poverty Law Center (SPLC) as an anti-LGBTQ hate group. The SPLC defines hate groups as those who "vilify others because of their race, religion, ethnicity, sexual orientation or gender identity." The SPLC web site lists these hate groups operating in Houston in 2018: Nation of Islam (black separatist), New Black Panther Party (black separatist), Israel United in Christ (black separatist), League of the South (neo-Confederate), and Conservative Republicans of Texas (anti-LGBT).

Judge Lisa Millard has contributed to this PAC and is regularly endorsed by this group. Many of our family court judges contributed this year to Hotze’s hate group to get his endorsement and fund his campaign mailers even though they did not face primary opponents. What would the they be saying if Democratic judicial candidates had each given $10,000 to a different hate group, such as the New Black Panther Party?
To be clear, I have many conservative Republican friends I respect. They have strongly held beliefs, but they are not haters or bigots. Times are changing in Harris County and Hotze will soon be demoted from king-maker to bigoted pariah. Judge David Farr did not give to Hotze this year and I am proud of him for that. I also cannot support any judge or candidate who contributes to a hate group that spreads prejudice and expects compliance from candidates it endorses.
In the Pidgeon v. Turner case, Judge Millard, on one of those few occasions when she was at work, signed an order in 2014 to halt same-sex benefits at Woodfill's request. However, a federal judge ordered the city to maintain the benefits, and the Houston Fourteenth Court of Appeals overturned Millard’s decision after the Obergefell decision. Woodfill appealed to the Texas Supreme Court, which at first declined to hear the case, but then changed its mind because of political pressure from social conservatives. The all-Republican state Supreme Court unanimously overturned the court of appeals ruling, and sent the case back to Millard’s court for trial.  Click here to read that decision. Houston Mayor Sylvester Turner appealed to the U.S. Supreme Court, which declined to hear the case. The city has continued to offer same-sex benefits while the lawsuit is pending. 

Before the Texas Supreme Court, Woodfill argued that his clients had standing to ask Millard to order the city to “claw back” past benefits already provided to couples. Woodfill said the very non-gay Pidgeon and Hicks had, in fact, suffered a particularized injury “because they are devout Christians who have been compelled by the mayor’s unlawful edict to subsidize homosexual relationships that they regard as immoral and sinful.”  The Texas Supreme Court ducked this issue of whether “Christian” Sharia law controls despite the freedom from and of religion afforded in the U.S. and Texas Constitutions. I assume that Woodfill in 1957, the year after Brown v. Board of Education , would have argued that a school district could not use his client’s taxpayer dollars to educate black children with his client's children if his devout client deemed that “immoral and sinful” (as many white “Christians” believed at the time).

If you see Woodfill at the courthouse, be sure to tell him that this lawsuit disgusts and offends you and that his bigotry is not “Christian” in the least.  If through some minor miracle you happen to see Judge Millard actually at the courthouse, do not say anything to her because we do not want to attempt any ex parte communications about a pending case.
Judge Millard's precious time should not be wasted with this case and she should instead hear the divorce, child custody, adoption and CPS cases in her court. Millard should not pander to bigoted hate mongers who cannot admit that a federal court injunction, upheld by the Fifth Circuit, in De Leon v. Abbott , 791 F.3d 619, 624–25 (5th Cir. 2015) has already decided this issue. There, the Fifth Circuit affirmed the trial court’s order that enjoined the State of Texas from,“enforcing Article I, Section 32 of the Texas Constitution, any related provisions in the Texas Family Code, and any other laws or regulations prohibiting a person from marrying another person of the same sex or recognizing same-sex marriage.”  Click here to read the De Leon case. Woodfill managed to convince the Texas Supreme Court to rule the trial court,"should certainly proceed on remand “in light of” De Leon , but it is not required to proceed “consistent with” it."

Millard’s fellow Republican judges might wish she would wait to hear this case until after November 6, because a hateful and ignorant ruling from a Republican family court judge who never shows up for work will get a lot of media attention in Houston and not help their re-elections at all. A 2017 Texas Tech poll found that 68 percent of Texans believe same-sex couples should be entitled to the full benefits of marriage, including health insurance. The question was asked in that poll because of Woodfill’s case being heard then by the Texas Supreme Court. I would guess that in 2018, close to 80% of Harris County citizens would object to the goal of Woodfill’s lawsuit. This case is not only immoral and wrong, it is not good politics in a general election and it is not going to help the Republican brand in November.
Democratic Candidate Profile: Janice Berg
Janice Berg is running against John Schmude for judge of the 247th Family District Court. I personally really like Judge Schmude and I consider him an above average judge and an awesome parent. If you want to meet a future titan of business or U.S. Senator, spend some time chatting with his daughter! 

However, as much as I respect Schmude, I know other lawyers who feel their clients were not treated fairly in his court. Janice Berg’s qualifications on paper are much stronger than Schmude’s were when he was elected four years ago. Berg has been a lawyer one year longer than Schmude (although of course he now has four years of experience as a judge). To meet Ms. Berg is to realize that all is not lost if the Democrats all get elected in November. Berg is bright and articulate and she seems to know family law. Just like Schmude in 2014, Berg does not have a ton of trial experience, but she has handled many more family cases than Schmude had when he first ran.
Janice Berg, age 37, earned her BA from Columbia University in 2003 and her JD from the University of Houston Law Center in May 2008. Since 2010, Janice’s practice has focused exclusively on family law. After working for Patsy Wicoff at Schlanger, Silver, Barg & Paine for three years, Berg opened a solo practice in late 2012, handling all types of family matters at the trial court level and in the courts of appeals and the Texas Supreme Court. Her first appellate oral argument was before the Texas Supreme Court in 2013, where she successfully argued on behalf of the petitioner in Tucker v. Thomas

About 50% of Janice’s current caseload is family law litigation and about 50% is appellate work involving family law cases, including CPS termination cases. Berg grew up in Philadelphia and moved to Austin after college, where she worked for two years as a paralegal for the awesome personal injury firm of Mithoff & Jacks. Berg has one jury trial under her belt and recently served on a criminal jury (that is experience most of us do not have!).

Outside of her law practice, Janice is active in the Anti-Defemation League, where she served on the Associate Board for the past 3 years and as co-chair of the ADL’s Glass Leadership Institute for Young Professionals. Janice lives in The Heights with her boyfriend, a criminal defense attorney. They have a rescue dog named Rosie.

This is the statement Ms. Berg sent me:

I was raised by a single mother, so I understand the impact that divorce can have on children. I believe that children need happy, healthy parents, not necessarily married parents. I also understand that family dynamics can be complicated; what works for one family may not work for another. These principles have guided me in my law practice for the past ten years. I am running for the 247th Judicial District Court because I am committed to bringing fairness to all citizens of Harris County, regardless of their sexual orientation, religious preference, immigration status, race, or nationality.

Click here to view Berg’s campaign website.
Royal Walker Moore (1938 - 2018)
We attorneys are not auto workers, so we do not build cars that last years, nor are we architects or builders who create structures that last decades. We certainly are not composers or sculptors whose creations may last centuries. So, what do we leave behind after so many years of long hours, stress and worry? Our brilliant briefs are not read after our cases are over and our devastating arguments are quickly forgotten by those few in the courtroom who hear us.

If we are lucky and truly successful, we leave behind what Royal Walker Moore (“Roy” or “RW”) did when he passed away on August 13, 2018.
If we are fortunate, we leave behind children we are proud of and grandchildren we were blessed to enjoy enough time with so that they fondly remember grandpa or grandma when they are adults. “RW” leaves behind a son, Judge Roy L. Moore, who most lawyers are very proud of, and four grandchildren who did get to enjoy and be spoiled by their “Big Daddy.”

If we lived life right, we leave behind spouses, family and friends who we had riotous good times with and with whom we shared the tragedies and challenges of life.  “Big Roy” certainly did that.

Mr. Moore consumed books like he did life and he had the respect of as many legal colleagues as he had toy soldiers in his collection. He was not totally defined by what he did at the office or in the courtroom, but he truly savored his work. I moved into family law at a time when Mr. Moore was not so active, but I got to see him in action a few times and he was fun and inspiring to watch.

A professional career done right is not remembered so much by the reputation, awards and accolades (and Mr. Moore certainly had all that as he was considered for a long time to be one of the best divorce lawyers in Houston), but rather by the memories of colleagues who remember the courtesy, humor, and iron clad honesty of a lawyer who treated judges, court staff, and fellow attorneys as they deserved to be treated. Mr. Moore’s skill in the courtroom will long be remembered in Houston, but so will his willingness to help young lawyers learn their craft.

We family lawyers also leave behind clients and their children, whose lives we have changed and done our best to make better. There are hundreds of middle-aged adults in the Houston area right now who never knew their mom’s or dad’s attorney, Mr. Moore. They will never understand how much he did to directly affect their lives nor appreciate the big role he played in making them the people they are today.

All this is the kind of legacy we can some day leave behind if we do things right. We each should strive harder to emulate Royal Walker Moore. So, go read a book, enjoy that hobby, help a baby lawyer in distress, have an adventure with a grandchild, tell your friends a hilarious story over cocktails, and make a positive difference in your clients’ lives. We may not always agree with Judge “Little Roy” Moore on the bench, but if you see him away from the courthouse, give him a hug and remind him that we old-timers all remember his Dad as “one of a kind” and someone we hope to emulate.

Click here to read the obituary on Mr. Moore.
What Trial Judges Cannot Do
I cannot comment on the all important social life at this year’s Advanced Family Law seminar because I stayed a few blocks away at a small boutique hotel that I think is the best place I have stayed at in my life. I cannot reveal the name of this sixteen room wonder for fear it will be overrun with divorce lawyers next August. I had a lot of quiet time to write on my web site on the 2020 Presidential election which will be launched next week.

Almost everyone complained that the seminar notebooks did not have numbered tabs. Instead, there were colored sheets of card stock in between the articles which made it much harder to find No. 32 in Volume 2 for example. I had my staff insert numbered tabs as soon as I got back to the office.

The reception for the Democrats running for family court benches in Harris County was actually very well attended and had to be shut down by the hotel staff because the crowd of over hundred stayed too late.

As always, two of the best presentations at this seminar were on case updates. These talks really should be two hours each.  Big compliments to Sallee Smyth and JoAl Cannon for their articles and talks. Many of the appellate decisions they summarized provide important lessons on what trial judges cannot do. I touch on a few of the more interesting cases below, but I strongly recommend that you read these two papers.

A parent’s immigration status cannot be used as a reason to not appoint the parent JMC unless the immigration status has a material effect on their parenting abilities.  Turrubiartes v. Olvera , 539 S.W.3d 524 (Tex. App. - Houston [1st Dist.] 2018). “The trial court heard no evidence in this case regarding any detention or immigration-related charge, any pending removal proceeding, or that Maria was a subject of any prosecution.”

The trial court cannot strike a jury demand for failure to pay the amicus attorney if there is a disputed jury issue.  Wheeler v. Wheeler , No. 01-16-00642-CV (Tex. App. - Houston [1st Dist.] 7/25/17)(mem. op.). The pro se father (who is a lawyer) won this appeal against some good lawyers thanks to the actions of the 310th District Court. 

The trial court may not award conservatorship of a child to a witness who is not a party (I told you Bonnie Hellums!).  In re C.Z.H.-O.&C ., No. 03-17-00016-CV (Tex. App. - Austin 10/27/17)(mem. op.). Apparently, the judge liked the father’s mother when she testified as a witness and did not like either parent. 
The trial court cannot require proof of a material and substantial change to modify temporary orders In re McPeak , 525 S.W.3d 310 (Tex. App. - Houston [1st Dist.] 2017, orig. proc.). 

Very important case on non-parent standing. The trial court cannot grant standing to a non-parent under the Sec. 102.003(a)(9) “actual care, control and possession” provision unless the child resided with the non-parent. The majority in this Texas Supreme Court opinion says the possession does not have to be exclusive and the burden is met if,“a nonparent has "actual care, control, and possession of the child" under section 102.003(a)(9) if, for the requisite six-month time period, the nonparent served in a parent-like role by (1) sharing a principal residence with the child, (2) providing for the child's daily physical and psychological needs, and (3) exercising guidance, governance, and direction similar to that typically exercised on a day-to-day basis by parents with their children.” This is a very important case on standing and it clarifies a lot of conflicting and confusing courts of appeals decisions.  In re H.S., _- S.W.3d __ (Tex. 2018)(No. 16-0715 decided 6/15/18).

The trial court cannot transfer venue on both children if only one of the kids has lived in the other county for six months In re Yancey , No. 12-17-00235-CV (Tex. App. - Tyler 9/13/17)(orig. proc.). The court can transfer the SAPCR on one child and keep one child.

The trial court cannot award interim attorney’s fees in a modification case unless there is evidence that the fees are necessary to protect the safety and welfare of the child . This mandamus case sets a very high bar for awarding such interim fees.   In re Payne , No. 03-17-00757-CV (Tex. App. - Austin 4/5/18)(mem. op.)(orig. proc.).

A trial court may not enforce an informal settlement agreement on child issues as a mediated settlement agreement and rule 11 agreements on kid matters may be revoked prior to rendition (only Title 1 of the Family Code authorizes informal settlements, not Title 5).  In re C.F.M. , No. 05-16-00285-CV (Tex. App. - Dallas 4/9/18)(mem. op.). This is why my Rule 11 agreements say they are not revocable, shall be enforced as if they were a MSA and, most importantly, include a rendition block at the bottom for the judge to sign to prevent revocation. Here is an example of what I use:


On _____, 2018, the Court approved the parties’ Rule 11 agreement and it is so rendered. It is ORDERED that the parties shall comply with the agreement. Counsel for Petitioner shall prepare an order based on this agreement. An entry hearing is set for _______, 2018 at ___ a.m.
Judge Presiding

This seems crazy, but a trial court cannot allow parents to agree to set aside their own mediated settlement agreement .  In re Minx , 543 S.W.3d 446 (Tex. App. - Houston [14th Dist.] 2018)(orig. proc.). The Texas Supreme Court declined to hear the mandamus filed as a result of this court of appeals decision. We need more experienced family lawyers on the Court of Appeals! The well written dissent from Chief Justice Kem Thompson points out that the mother agreed to set aside the MSA and for 15 months lived under new temporary orders without complaint before suddenly making a u-turn at the end of the case and saying she wanted an order based on the MSA after all. 

A mediated settlement agreement outlives a trial court’s plenary power and an order based on the MSA can be entered in a later case .  Williams v. Finn , No. 01-17-00476-CV (Tex. App. - Houston [1st Dist.] 7/10/18)(mem. op.).   Here, a final order was entered, the parties mediated and agreed to substitute a new order but the new order was never entered before the trial court’s plenary power expired. The court of appeals ruled that the MSA was valid and the governing statutes do not say MSA’s are invalidated once a court’s plenary power expires. Thus, the court can enter an order based on the MSA in a later modification case.

On the other hand, a mediated settlement agreement signed before a lawsuit is filed is not enforceable as a MSA (it might be enforceable as a contract but it can be revoked and is subject to the usual contract defenses).  Highsmith v. Highsmith , No. 07-15-00407-CV (Tex. App. - Amarillo 9/28/17)(mem. op.).

One way to get around a MSA: a MSA on child issues in a pending divorce that is still pending because of property issues can be modified if temporary orders based on the MSA were entered and a modification of the temporary orders are necessary to protect the children, even if that means the final order will vary from the terms of the MSA!  Harrison v. Harrison , __ S.W.3d __ (Tex. App. - Houston [14th Dist.] 6/12/18)(nO. 14-15-00430-CV). This case also says that if a parent who had gone through many, many attorneys, it is not automatic error to allow a lawyer to withdraw right before trial.

Even in Texas, tracing of separate property cattle is not the same as tracing money in the bank and the “minimum sum balance” method of tracing cannot be used on herd animals. Stegall v. Stegall , 519 S.W.3d 668 (Tex. App. - Amarillo 2017).

Standard language in a deed may prove the transfer was not a gift. If a deed to land says it was transferred for “$10 and other good and valuable consideration,” the deed language can rebut a mother’s testimony that she gave the land to her son as a gift. Knowlton v. Knowlton , No. 04-17-00257-CV (Tex. App. - San Antonio 5/16/18)(mem. op.). See also Scott v. Scott , No. 04-17-00155-CV (Tex. App. - San Antonio 6/6/18)(mem. op.), which basically said the same thing and said deeds were to be construed solely on the wording in the deeds and not on testimony of what the parties intended to do. If your client wants the land to be community property and not a gift, object to any testimony about what the parties intended. The court in the Scott case said,“This court recently held that parol evidence is not admissible to contradict the recital of consideration in a deed when a party is seeking to establish a deed reciting consideration is a gift deed.”

Some really bad spouses do lose it all. An award of 100% of the community property to one spouse was upheld in Lynch v. Lynch , 540 S.W.3d 107 (Tex. App. - Houston [1st Dist.] 2017). This was a default judgment but the opinion cites other cases where a 100% award was affirmed.
Thank you for your support! Together We Can Make Our Profession Better and Our Courts More Fair
Attorney Greg Enos has been through his own divorce and child custody battle (he won) and understands what his clients are going through. Enos graduated from the University of Texas Law School and was a successful personal injury attorney in Texas City before he decided his true calling was to help families in divorce and child custody cases. Greg Enos is active in politics and in Clear Lake area charities. He has served as President of the Bay Area Bar Association and President of the Board of Interfaith Caring Ministries. The Enos Law Firm serves clients in Galveston County, Brazoria County and Harris County, Texas.
Greg Enos
Board Certified in Family Law, Texas Board of Legal Specialization
The Enos Law Firm
www. divorce
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