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Motion for enforcement possession and access on the associate judge’s hand written recommendation. Very unusual – people like to say the associate judge’s handwritten recommendation cannot be “enforced.”
The following discussion is about enforcement of the associate judge’s recommendation which had not been reduced to an actual order of the court. Bottom line I won, what follows is how I won.
As background, in the large counties in Texas the various family courts will use an associate judge to take much of the burden off of the district judge. This judge is an appointed judge hired by that judge’s district judge. For example, the district judge does not hear temporary orders. But, the district judge will hear a contempt or trial of the case. People like to say, until the associate judge’s recommendation or ruling is reduced to a writing signed by the district judge the order is unenforceable. Well, that is not really true.
It is true that the associate judge’s ruling cannot be enforced by contempt such that the respondent will be fined or go to jail because there is no actual detailed writing signed by the district judge. However, that does not mean the associate judge’s ruling cannot be enforced by other means. It is the “other means” part that is dangerous for the Respondent.
In my case . . .
the associate judge rules that my client is to have possession of his children on the 1st, 3rd and 5th weekend on the Saturday of that weekend commencing at 12:00 p.m. and ending at 4:00 p.m. of each month. The associate judge issued his ruling on June 1. The first Saturday was the 7th. The third Saturday was the 17th. Right off the bat the opposing party denies my client possession on the third. We file our Motion for Enforcement on the 5th and she is served with the Motion on the 11th (at Church of all things). Then get this, she denies my client possession yet again on the 17th. Lot of drama going on in this deal.
The Motion for Enforcement on the associate judge’s order was heard this morning before the district judge. The opposing attorney objected to going forward claiming that the associate judge’s ruling was not an order of the court. This was over ruled by the district judge.
§201.1041 of the Texas Family Code entitled “Judicial Action on Associate Judge’s Proposed Order or Judgment” states that the proposed order or judgement is and operates as an order of the Court. The Respondent just can’t be put in jail for violating it. So the result:
I submitted a proposed order with findings that Respondent had denied possession to my client on the 3rd and 17th. The proposed order stated that my client was to have “make-up” time with his children for the 8th and 22nd of July. The proposed order also awarded to my client $2,500.00 in attorney’s fees, for my efforts in bringing the motion, and those attorney’s fees are collectible as child support. Court signed the order.
The purpose, above all things, was to build a track record of a history of denial of possession and contempt of court. Next time we go to the court house on this issue, the Respondent will be going to jail.
Just one more thing – attorney’s fees collectible as child support. Normally in a family law case attorney’s fees awarded by the court is nothing more than a debt for which someone cannot be jailed for failing to pay. However, in a child support or possession enforcement case the payment of attorney’s fees is not a debt but is styled as support for the child. Thus, the failure to pay attorney’s fees as a result of denial of possession will bring about another contempt action and more attorney’s fees and possible jail. .
I don’t really think the opposing party or her attorney really had any idea of what was coming against them this morning.
This is how we roll. Bam!!