Issue No. 87
September 24, 2018
In this issue....

  • I Am Not Hiding Who I am Supporting This Election
  • Judge Doug Warne to be Honored
  • A New Attorney for The Enos Law Firm
  • Book Review - Texas Style Justice by Susan P. Baker
  • 401k Divorce Magic Part 1: Most Attorneys are NOT Correctly Calculating the Separate Property Portion of 401k’s and IRA’s
  • Harris County Judicial Races Are Hitting Close to Home
  • My Pet Peeve: Weak Judges Who Cannot Control Attorneys and Tolerate Rude, Disrespectul, Time-Wasting Behavior
  • Democratic Judicial Candidate Profiles: Sonya Heath

My 2020 Presidential Election Web Site Is Up and Running!

I am still recruiting reporters in New Hampshire, Iowa and Nevada and looking for good columnists, but my comprehensive web site on all news about the 2020 race for the Democratic nomination for President is operational.

Click here to visit 2020 Front Please like us on Facebook and follow us on Twitter. Click here to see our Facebook page.

HBA Judicial Preference Poll Closes September 28

Houston Bar Association members have until September 28 to vote in the Judicial Preference Poll. Check your e-mail in-box for an email from [email protected] with the subject line: "2018 HBA Judicial Preference Poll Ballot."

Handy Chart on Harris County Family Courts Available

I have shared a lot of charts for local attorneys over the years. But, now I face stiff competition in the "helpful court chart department" from Houston attorney Tom King. Click here to download King's chart with almost all of the information you need on courts and all those we call frequently in the practice of family law.

King offers half day mediations for $250 per party. Click here to see King's website.

court chart

I Am Not Hiding Who I am Supporting This Election

I am supporting some great Republican candidates this Fall, such as Kerri Foley in Galveston County and David Farr and Chris Daniel in Harris County.

The administration of justice should have nothing to do with which political party a judge or clerk belongs to. I am supporting Farr and Daniel because of the great work they do, even though I fear they will lose and despite the fact that I am in many respects a liberal. I do believe in a strong and efficient military, great medical care for our veterans, fiscal responsibility and the Second Amendment to the extent it allows my wife to have her pistol but not if it allows me to own a military style assault rife. I want the federal government to balance its budget AND provide Medicare for All. So, as you read this newsletter do not assume I am just pimping for Democrats. I am supporting what is right and I am for the best candidates. I am also not hiding who I am supporting.

Neither Republicans David Farr or Chris Daniel donated to Dr. Hotze's anti-gay hate group, Conservative Republicans of Texas or CRTX News, this election cycle (unlike judges Dean, Lombardino, Moore, Schmude and Prine).

The Southern Poverty Law Center lists Hotze's organization as a hate group. I am not going to politically support those who financially support hate, even if I think they do a good job in the courtroom or personally like them.

The Southern Poverty Law Center, which tracks hate groups of all kinds, from neo-Nazi's to the New Black Panthers, explained its criteria for designating an organization as an anti-LGBT hate group:

Anti-LGBT groups on the SPLC hate list often link homosexuality to pedophilia, claim that same-sex marriage and LGBT people, in general, are dangers to children, that homosexuality itself is dangerous, support the criminalization of homosexuality and transgender identity, and that there is a conspiracy called the “homosexual agenda” at work that seeks to destroy Christianity and the whole of society. Viewing homosexuality as unbiblical or simply opposing same-sex marriage does not qualify an organization to be listed as an anti-LGBT hate group.

There are many "Christian" and conservative groups in Texas who oppose equal rights for the LGBT community. But, only one group in Texas has been listed as a hate group -- Hotze's and Woodfill's Conservative Republicans of Texas.

Shame, shame, shame on any judge who financially supports a hate group.

Why give Hotze $5,000 in February when you knew you did not have a primary opponent? Supporting Hotze's political mailers gives Hotze clout and influence in Republican circles to advance his mean and ignorant anti-gay agenda. I wish Farr and Daniel would decline and renounce Hotze's endorsement, as I am sure they would if a neo-Nazi group endorsed them.

Any judge who has contributed to Hotze's hate group should be recused from any case involving LGBT parties and should review their ethical duty to avoid creating the appearance of bias and prejudice. Imagine a judge who "buys" advertisements in a mailer sent out by an outspoken white supremacist who openly says it is "ungodly" to give equal rights to non-whites. If you give to Hotze for his mailers, you are supporting his agenda even if you claim you are just paying for an advertisement. Hotze's last mailer this Spring had an asterisk beside any Republican candidate who Hotze felt supported the homosexual agenda.

In my next issue, I will explore the murky finances of how Hotze's mailers are paid for and how some judges we know are paying for their listings in what Hotze sends out. Some claim laws are being broken. I will investigate and let you know.
Judge Doug Warne to be Honored

Family lawyers should gather next month to honor one of the best judges in recent memory (and a Republican), Doug Warne. There will be a portrait unveiling ceremony for the Hon. Doug Warne on Friday, October 5, 2018 at 1:00 p.m. in the Ceremonial Courtroom, Civil Courthouse, 17th Floor. A reception will follow in the Ceremonial Conference Suite. Judge Warne served as judge of the 311th Family District Court from 1999-2010.
A New Attorney for The Enos Law Firm

Jerry Loza has joined my law firm as an Associate Attorney. Galveston County Family District Judge Anne Darring was kind enough to swear Jerry in before his family and my entire office staff.

Jerry graduated from South Texas College of Law and he lives with his wife, Monica, in Houston. He is an incredible addition to our law firm team.

Judge Darring treated the swearing in like an adoption and allowed Jerry's family and my staff to pose for pictures (taken by my opposing counsel who was waiting to start a trial with me).

Book Review - Texas Style Justice by Susan P. Baker

How often do you as a Texas family law attorney get to read a novel where on page 4, the judge is asking a lawyer about the fact that a modification case was filed within a year of the prior order? That fictional judge then gives the attorneys 30 minutes each to present their temporary order hearing, saying:

"Thirty minutes. I have a full docket today and a meeting with a large group of folks this evening. I know ya'll are from out of town, but in this courthouse, there is no associate judge for either of the district judges. Two of us hear everything, and we each have three other counties in our districts. Our calendars are always over-booked." She positioned herself with a pen and notepad. "Thirty minutes, take it or leave it. Or...." she spread her lops in a thin smile,"you may certainly go to mediation for the sole purpose of determining where the children will reside during the pendency of this case."

The next chapter starts with a regional administrative judge hearing recusal cases. For the family law bar, this is a book where the courtroom action is as realistic as it gets (at least if you ever practice in the smaller counties of the Hill Country).

Former Galveston County District Judge Susan Baker has written seven novels and two works of non-fiction. This is her most recent novel and I found it very entertaining and realistic. Ultimately, this book is about the price of ambition, politics and (gasp) corruption in the justice system.

Here is what a very positive review on said about this book:

My greatest disappointment with this novel is that it came to an end. Through the viewpoint of Judge Tori Van Fleet, informed by the author’s former career as a Texas judge, readers are privy to the fascinating inner workings of the justice system, including temptations faced by judges and lawyers to cut corners at the least and sell their souls at the worst. Tori’s integrity is under siege from outer forces, while she is torn by inner conflicts related to ambition, marriage, family life, friendship, and her future.

Traumatized by an assault in her courtroom a year earlier that left her badly beaten, Tori fears prison release and retribution by her assailant. County commissioners and old boy judges resist her relentless pressure for funding courtroom and courthouse safety. Her everyday work often overshadows her marriage, which is threatened when her husband Sergio presses her for a baby, despite a pre-marital understanding that she doesn’t want children. Beth, her best friend, becomes her competitor in vying for the seat on the Texas Supreme Court vacated by a judge’s death under suspicious circumstances. While these matters weigh heavily, life is about to get more tangled, a lot more dangerous, with impossible decisions ticking away like time bombs.

Click here to purchase this book on Amazon.
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
   Please forward this e-mail newsletter to everyone who cares about our family courts! 
Want to join the mailing list?
Just send your email address by text message
Text the code: THEMONGOOSE to 22828 to get started
401k Divorce Magic Part 1: Most Attorneys are NOT Correctly Calculating the Separate Property Portion of 401k’s and IRA’s
Many lawyers are not using the proper method for calculating the separate property portion of a 401k or IRA and are thus cheating their clients out of sometimes big amounts of money.

Consider this real-world example: The husband’s 401k had $139,632.93 just before marriage and on the day of mediation had $499,025.46. So, the separate property portion is the pre-marriage $139,632.93 balance and the community portion is $359,392.53 (current balance less the amount in the account as of marriage), right? Wrong. At a recent mediation I persuaded my opposing counsel that the separate property portion of this account was $293,825.48 and the community portion was $205,199.98. We did this on two retirement accounts for my client at this mediation and, since we agreed to a 50-50 property split, this saved my client over $142,000 (50% of the reduction in the community value).

The trick is to see how the 401k or IRA was invested at the time of marriage and since and apply this basic principal: if an asset is separate property and owned before marriage, and if the value of that asset increases during marriage the entire current, larger value is all separate property. If a spouse's 401k plan owns 100 shares of Apple before marriage and at the time of divorce still owns those same 100 shares, those shares are all still separate property even if their value has increased 20 fold.

Tex. Family Code §3.007(c) states:

The separate property interest of a spouse in a defined contribution retirement plan may be traced using the tracing and characterization principles that apply to a nonretirement asset.

Defined contribution plans include 401k plans and IRA’s.  Sec. 3.007(c) says we are to apply the usual rules for characterization, such as the doctrine of inception of title, tracing rules, etc. to such retirement plans. So, investments in the plan prior to marriage (if proven) would be separate property. Funds added to the plan during the marriage through employee contributions, employer matches, interest and/or dividends would be community property.

The diligent attorney must check to see what the employee’s plan account is invested in now compared to its investments at the time of marriage. Most defined contribution retirement plans are invested in mutual funds or cash, but some plan accounts are invested in individual stocks (often shares of the employing company).  If the 401k plan holds the exact same investment (100 shares or 622 units of the same mutual fund), that investment would still be all separate property even if its value has increased during the marriage.

To prepare for my mediation described above, I obtained the full detailed 401k and IRA statements from just before marriage and the most recent statements. Both statements showed the details of how the plans were invested. Each plan was totally invested in mutual funds, which are denominated in units (not shares). I recorded the number of units in each mutual fund as of the time of marriage and in the most recent statement and I recorded the current per unit price. I then made this chart:

In this case, the number of units in each mutual fund in the Acme 401k increased because this plan used dividends to buy more units. Also in this case, the American Funds IRA went down because a large withdrawal was made during the marriage. If the number of units in the Smallcap World Fund in the American Funds IRA at the time of marriage was 949.339 and now is just 516.423, then I recorded that the number of separate property units was the current 516.423. The “community out first” rule of tracing applies in this situation.

I explained my methodology to the mediator and to the opposing counsel, who had come to mediation using the traditional “subtract value at time of marriage from current value” approach to calculate the community property portion. My esteemed opponent accepted my methodology and then rudely (and cleverly) turned around and applied the same approach to her client’s two retirement plans and saved her client a bundle as well.

Each lawyer double-checked the numbers against the statements and also checked the calculations and we ended up agreeing on what was separate and community property in each retirement plan. For both spouses, the amount of separate property in each plan increased dramatically using my approach instead of the traditional “subtract value at time of marriage from current value” approach.

In this divorce, both spouses were not active investors in their plans and they basically left their retirement plans alone during the marriage. They did not do a lot of buying and selling and moving of money from one mutual fund to another. This was also only a nine year marriage.

The approach described above, which was done without any sort of expert witness, would not have been possible in a 22 year marriage where the employee spouse had constantly shifted funds from one investment to another. A tracing expert would be needed in that sort of situation and would only be cost effective if there was a lot in the 401k. In that convoluted and complicated sort of case, the traditional “subtract value at time of marriage from current value” approach would probably be used without objection. There are still relatively recent appellate cases which apply the subtraction method to 401(k) accounts even after the adoption of Sec. 3.007(c) in 2005. e.g., In re Marriage of Santopadre , No. 05-07-00027-CV (Tex. App. - Dallas 8/19/08, no pet.)(mem. op.).

If you would like the Excel spreadsheet used to calculate the separate property portion of a defined contribution retirement account, email me at [email protected] and I will be happy to share it with you.

In my next issues, I will continue to write on the fascinating subject of “401k Divorce Magic” and cover these topics:

•   Should the value of a 401(k) account be reduced because it has not yet been taxed?

•   How does the attorney show a 401(k) loan on the community property spreadsheet?

•   What is the correct way to word a settlement agreement that divides a 401(k) account?

•   What are the procedures and tax implications for dividing a 401(k) account in a divorce?
Harris County Judicial Races Are Hitting Close to Home
Judge Franklin-York was understandably a little shocked to come home from work and find her opponent, Germaine Tanner, at the house across the street.

What Judge Franklin did not know is that her across-the-street neighbor had contacted Germaine Tanner and asked for signs for her prime corner lot. Tanner was there with two volunteers who placed the signs. The signs were put up and Tanner, who remained mostly in her car, left with her team, according to Tanner.

If you are a Republican incumbent worried sick that you might lose your job on November 6, this is not what you want to see every morning, evening and weekend from your own home.

However, Franklin and her attorney friends on Facebook keep posting about this alleged stalking incident as if Tanner was waiving a bloody machete on the judge's front porch. Given the actual facts (and at least four witnesses), I would suggest Franklin-York just drop the issue. The lawyers sharing posts accusing Tanner of being a "psycho" might want to reconsider in light of what really happened and they should remember that Tanner could well be the judge next year.
My Pet Peeve: Weak Judges Who Cannot Control Attorneys and Tolerate Rude, Disrespectul, Time-Wasting Behavior
A judge recently thanked me after a trial for presenting a case that was succinct and to the point. This judge’s pet peeve is lawyers who repeat the same point over and over and who waste time talking about matters that are not related to the contested issues the judge must decide. I tend to be a minimalist at trial and sometimes I worry I present too little. However, I usually rely on my intuition about how much I need to offer for that particular judge to get my point across. So much depends on how experienced, smart and savvy the judge is. The better the judge, the less I need to emphasize and repeat.

One of my pet peeves about judges is when a judge not cannot control a hearing or trial. We give the position of judge authority and power, we raise the jurist up over us in court on his or her bench and the State provides a gavel, a bailiff and the power of contempt. A good judge fairly allows each side to present an argument. A less competent judge allows one or both attorneys to take over the proceeding, to interrupt, to insult opposing counsel, to talk on and on and on, and to waste time. 

Here are some phrases you hear good judges use to control things:
  • Counsel, that is not the question I asked. Just directly tell me why....
  • Sir, please stop. I get that point, you do not need to repeat it...
  • Counsel, stop right there. You will not interrupt your opposing counsel like that let. Let her finish and I will allow you to briefly respond.
  • Ma'am, I have a lot more people who need my attention this morning, so please just briefly explain why you think the law allows me to ....
  • No sir, stop right there. You can say you disagree with his interpretation of that decision, but you are not going to accuse your opponent of misleading this court unless you have some really strong proof. We can disagree without calling each other names. So, stick to your argument and leave off the personal attacks.
  • Counsel, sit down. I have heard enough on that point.

Roy Moore and Judy Warne are two examples of judges who know how to control their courtrooms and the lawyers who appear before them.

An even worse pet peeve for me is a judge who allows the big shot, high dollar attorneys to talk on and on but then seems perfectly capable of cutting of the regular, journeyman lawyers. A judge should be fair, even-handed and in control.

Note: Ever wonder where the phrase “pet peeve” comes from? According to Wikipedia, the term “pet peeve” was introduced to a wide readership in the single-panel comic "The Little Pet Peeve" in the Chicago Tribune during the period 1916 - 1920. The Little Pet Peeve was created and drawn by Frank King, who is more famous as the creator of the Gasoline Alley comic strip. King's little pet peeves were humorous critiques of generally thoughtless behaviors. Some were particular to his time, such as people reading the titles in silent films out loud, or cracking an egg only to smell that it's gone rotten. Others seem current over a hundred years later, like backseat drivers, and rugs that are forever catching the bottom of the door and bunching up. King's readers submitted some of the little pet peeves, including: theater goers who open candy in loud, crinkly wrappers.
Democratic Judicial Candidate Profiles:
Sonya Heath
I am profiling each Democrat running for a family district court in Harris County. We already know our Republican judges and so I am introducing my readers to candidates they probably are not familiar with. I urge you to meet these candidates yourself and form your own opinions.

Sonya Heath absolutely promises one way in which she would be an improvement over the Republican incumbent Judge Lisa Millard: Heath will show up to work and earn her salary. That alone would be a huge improvement.

If Heath is elected, she will also remind us all why we all need to be nice and kind to the paralegals we talk to at other offices. Heath was a paralegal for 23 years before she went to law school at Thurgood Marshall after her youngest son was in high school. She graduated law school in 2009 and went to work for the legendary Craig Washington working on capital murder appeals. In 2010, she opened her own practice and has focused on family law for the last 8 years. Heath has two grown sons and is very active in Rotary, ABA Young Lawyers and the Mexican American Bar Association. She participates in the BP MS150.

I have had one case against Ms. Heath and I found her to be an organized, firm and easy going litigator. She is certainly a pleasure to talk to and get to know outside of the courthouse. Heath would bring to the 310th a very personal experience in family law as she has been divorced, changed custody of a teen and then changed it back, and adopted a child.

Oh, and did I mention she plans to work hard every day and not abandon her post to let an over-worked associate judge do all the work?

Heath provided me this statement:

"I have worked in the legal field for over 30 years (9 as a licensed attorney and 23 as a legal assistant). After my two sons were raised, I decided to go to law school. I opened my office and focused primarily on Family Law approximately 8 years ago. Family Law was a natural fit as I had been involved personally in so many ways in the family court system. I have been divorced, gone back and forth on custody and child support, and adopted my youngest son.  I have seen what works and what needs to be fixed within the system. I understand the daily struggles of families having lived it and from practicing as a family law attorney advocating for my clients’ rights. It is complicated; it is heart-rending; it can be an emotional strain on all involved.  As an attorney, I am required to have a thorough understanding of the written law and how to interpret it.  I understand this responsibility and I abide by it.  Studying it, understanding the many circumstances in which people are impacted by it, and striving to create a healthy environment for all concerned are life-long habits of mine.   I consider myself a peacemaker. I am firm, yet compassionate.  I know I can serve the office well. It is definitely time for a change in the family courts. A change that will bring about fairness and equity to all."

Click here to view Sonya Heath's campaign website.
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
Want to join the mailing list?
Just send your email address by text message
Text the code: THEMONGOOSE to 22828 to get started