Dallas Divorce Law Blog by Michelle O'Neil

Dallas Divorce Lawyer Michelle May O’Neil received national recognition from the National Law Journal where they profiled Ms. O’Neil as an Appellate Leader.  To see a copy of the profile that appeared in the magazine, click on:  National Law Journal Profiles Appellate Leader Michelle May O’Neil.  The National Law Journal regularly features Leadership Profiles to assist its readers in choosing outside counsel and referrals. Profiles focus on various specialties and other areas featuring attorneys who represent companies as well as individuals.

Today, John Council of Texas Lawyer Magazine interviewed me for his Reversed and Remanded video blog.  To see the video, click here:  Michelle May O’Neil Interview.  The topic was In re J.O.A., a case decided by the Texas Supreme Court this month.  There, the Court decided that the Texas Family Code statute requiring a party intending to appeal a termination decision to file a Statement of Points within 15 days of the entry fo a termiantion order.  The Statement of Points must outline each issue that the party plans to appeal.

In J.O.A. the trial court lawyer failed to file the Statement of Points and the trial judge failed to appoint an appellate lawyer in a timely manner to meet the deadline.  The court of appeals held that the party had ineffective assistance of counsel.  This claim means that the lawyer not only failed to perform his duty, but that the client was harmed by the failure.  The court of appeals found that the trial lawyer’s failure to file the Statement of Points was harmful because the father appealing had an appellate point of error that would have been meritorious based on insufficient evidence. 

The government argued that the father could not present his claim for ineffective assistance of counsel because it was not listed in a Statement of Points.  The Texas Supreme Court held that the statute requiring the filing of a Statement of Points is unconstitutional to the extent it denies a party from presenting a claim for ineffective assistance of counsel.

This ruling does not mean that the requirement of filing a Statement of Points has vanished, but only serves to preserve a party’s right to complain in a limited sense about ineffective assistance of counsel where no Statement of Points was not filed.  This case should serve as a huge reminder to lawyers who represent parents in termination cases that the lawyer on file has the duty to file the Statement of Points even if that lawyer isn’t going to represent the parent on appeal.

The Texas Supreme Court reversed a contempt finding in a Denton County divorce recently.  In In re Coppock, the parties entered into an agreed divorce decree that prohibited using coarse or offensive language in communicating with the opposing spouse.  This provision was contained in some general provisions of the decree, but did not include any injunctive language.

The ex-wife was found to have violated that provision 84 times by sending caustic emails to her ex-husband where she made fun of his weight, belittles his finances, mocked his ability in bed, and dismissed his new wife as “trailer trash”.  Former Judge Vickie Issacks found the ex-wife in contempt and sentenced her to jail.  The sentence required three consecutive 180-day terms, which would be waived if she reported for 4 nights in jail and paid the ex-husband’s attorneys fees.

The Texas Supreme Court held that the contempt order is void because the underlying order did not directly command action sufficient to be enforced by contempt.  Further, the Court held the provision of the decree did not clearly state it was an order of the court instead of an agreement of the parties because it did not contain “decretal” language (e.g., “IT IS ORDERED…”) and was not in the injunction section of the decree.  As such, the Court found it to be an agreement of the parties and therefore only enforceable as a contract.

Interestingly, the Texas Supreme Court cites to In re Dupree, a case I won on writ of habeas corpus out of the Dallas court of appeals.  It is unusual for the Texas Supreme Court to cite to a case as authoritative out of the court of appeals level.  This means that the Texas Supreme Court has accepted the Dupree case as authoritative. 

The ex-wife also asserted certain First Amendment challenges that the provisions of the decree unlawfully restrained her right of free speech.  However, since she did not make those challenges in the trial court, the ex-husband argued those were waived.  The Court did not reach the constitutional arguments because it held the contempt order void for other reasons.

So the writ of habeas corpus was granted and the ex-wife was released from confinement.

Note, Texas divorce lawyers utilize similar orders, called the Standing Order in most counties, in virtually every pending divorce in Texas.  (Click for Denton County Standing Order, Collin County Standing Order or Dallas County Standing Order.) This case may lessen the enforceability of those provisions, even though the Coppock case dealt with a final order and those frequently are found in temporary orders. 

I received this from another lawyer that hires me to assist on his cases when complex issues arise:

“My office frequently refers individuals to The May Firm for appellate family issues.  Michelle is a wealth of information when it comes to dealing with complicated legal issues.  Her office is very easy to deal with and we are extremely comfortable with her legal abilities.  I would feel comfortable referring even the most complex of cases to Michelle after having personally experienced her capabilities.”  Gregg Gibbs, Baxter, Gibbs, Robison, & Hnderson, PLLC, McKinney, Texas

An attorney recently hired me to assist with one of his cases in preparation for a potential appeal.  He says:

“As soon as I realized things may not go smoothly [with my client's case], I contacted Michelle May O’Neil.  She immediately became immersed in the facts of my client’s case, pointed out some overlooked issues, and suggested a wise course of conduct.  Michelle then provided a timely and very thorough brief that was right on point.  Ultimately, my client got what she wanted, the judgment was upheld, and she walked away happy.”  Bruce Bain, Tyler, Texas

I saw this interesting post on the Dallas Morning News blog this morning commenting about the election results.  What interested me what the description of the function of an appellate court:

“Well, appeals courts not only check the work of trial courts, but they often have to make rulings that interpret the law. If a trial court is like an referee in a football game, think of the appeals court as instant replay and a member of the rules committee. So if they see something not addressed by the rules, they have a lot of latitude.”

A new testimonial from a lawyer/client who hired me to help on a case of his:

“Simply put, Michelle is a brilliant attorney. She is extremely professional and tenacious, a rarity in today’s legal world. No one can out-think or out-prepare her. That’s why she has been and will be the only family law appellate attorney we call on.” M.R.W.

Dallas Family Lawyer Michelle May O’Neil recently spoke at the State Bar of Texas Marriage Dissolution seminar, held in Galveston, Texas on the topic “We Lost, Now What?”  The presentation, to approximately 250 Texas lawyers, addresses presenting a family law case on appeal to the court of appeals.

To see the article, click here: We Lost, Now What? CLE article

I frequently speak and write for seminars that provide continuing education credits for judges, lawyers, and paralegals. My practice is unique in that I not only represent clients in divorce cases before the trial court, but I also represent clients on appeals to the Texas Courts of Appeals and the Texas Supreme Court once their cases are concluded at the trial level. There are only a handful of lawyers in the Dallas area that routinely handle family law appellate matters. I believe that I have a unique perspective on handling client’s matters before the trial court because I see a broader view of a case, not only as a trial lawyer, but only what could happen on appeal. I also think my litigation experience before the trial court gives me a better perspective on my appellate practice.

As a result, other divorce lawyers frequently hire me to assist with cases at the trial court level with an eye toward appeal. For example, I have been hired to handle a specific legal issue that will almost certainly be appealed at the conclusion of the case. Or, I have been handled to act as second chair at trial to generally assist the lead attorney in preserving error for appeal.

I presented a seminar for the University of Houston Continuing Legal Education seminar for judges, lawyers, and paralegals called Protecting Your Client’s Case For Appeal. Click here to download the article. Here’s a audio recording of my introduction to the prepsentation — click here. (I apologize for the quality of the recording and the background scratchy noise.)