Michael Busby has tried over 200 family law and divorce cases over the last 16 years.
He has tried cases in every family law and divorce court in Harris and Ft. Bend Counties.
Judges at the district court and also the county court level are required to be licensed attorneys. Knowing the judge both in practice and seeing the transition to judge is helpful in determining what policy or philosophy the judge will employ in the courtroom. All Judges want to be seen as both fair and impartial. Most will state in family or divorce, that the best interest of the child is the primary concern when spouses and parents cannot work things out.
You may be in a situation where your facts were not presented in the best light. If this happens, you may want to consider an appeal of the trial judge’s decision. In a family law context, you have three different types of judges. You have a master who presides over title 4 child support cases. You have a right to trial de novo in front of the elected district judge but must file the appeal within 3 business days. Then there is the associate judge for the elected or presiding judge. You also have a right to trial de novo on referrals made to the associate judge back to the district judge. This is different from an appeal the Texas court of appeals or Supreme Court of Texas. While I can help you in all aspects of a family law or divorce case, the purpose of this page and information contained herein is to provide information on how to appeal a final judgment from a court for which you will be going to need a brief, oral argument, the reporter’s record, and an opinion from a higher court. As deadlines are short in this area, I encourage you to email me at [email protected] with your cause number, date of judgment, along with a summary of what happened at the trial court .
There are several ways to have a final judgment appealed, below is discussed the procedures generally for your information on the procedure used to review the judgment:
1. Appeal after judgment
If either the trial court or the jury verdict was an event for which you participated, then you would more likely than not file a traditional appeal. The record takes about two weeks to be prepared by the court reporter. Also, a motion for new trial may be something that can be used to preserve error committed by the trial court. The motion for new trial must be filed within 30 days of the judgment having been signed. If an affidavit is required on the motion for new trial, then this must be filed with the motion and cannot be amended even if the court does not hear the case up until the 75th day after the judgment was signed.
2. Restricted Appeal
If you were defaulted at the trial level, thus you did not participate in the trial, you may file a notice of appeal within six months of judgment, you must show that the you did not participate in the hearing for which the judgment was made, and make a showing of error on the face of the record. If you receive notice of judgment within 30 days, I would not recommend sitting on the case and thinking that this procedure will allow you to fix everything. You can set aside a default judgment with a motion for new trial if filed within 30 days and thus avoid the appeal. Deadlines are firm, please call as soon as you find out about a default and look to your options in setting aside the judgment.
This procedure is available when the trial court does something that may be void. Such as issuing an order for child custody when the child has never resided in Texas. Texas would not have jurisdiction to issue the order if the child had never been to Texas. Many times parents see themselves in the state, thus, they assume along with their attorney, that Texas would have jurisdiction over all aspects of the family law case. While Texas law does state if you dissolve a marriage in Texas you must include the children issues, the Uniform Child Custody Jurisdiction and Enforcement Act, trumps Texas law when it come to the children issues. The filing of a Mandamus usually will result in an order, opinion or response from the court of appeals within about 45 days. The Mandamus is a writ that requires a trial judge to conform their judgment or act in a way for which the court of appeals has mandated is proper and within the jurisdiction or authority of the trial court. Thus, when the mandamus issues, the trial judge has not acted properly and signed a judgment or an order for which is void or has abused their discretion such that no remedy may be available on appeal.
Confirm the date included as the date of signature of the ruling, decree or order:
The last day of the period so calculated should be included, unless it is a Saturday, Sunday or legal holiday, in which case the period extends until the end of the next day, if it is not Saturday, Sunday or holiday.
|Day||Deadline||Action required (Special rules for termination appeals are italicized)|
|0||Start date: date of sentence or date of signed order.|
|10||Within 10 days of the hearing, request the findings of child support under Tex. Fam. Code § 154.130.|
|15||File the statement of points for appeal in cases of TDPRS. Tex. Fam. Code § 263.405 (b).|
File request for findings of fact and conclusions
of the Law. Tex. R. Civ. P. 296. The timely submission of the request extends
the period of time to 90 days to appeal, after the signing of the ruling or
decree. Tex. R. App. P. 26.1.
Deadline for perfecting the appeal in cases of expedited appeal (including cases of TDPRS) regardless of requests or motions after the trial. Tex. Fam. Code § 263.405 (a); Tex. R. App. P. 26.1 (b).
The plenary power of the court of first instance
ends and the appeal must be completed if a motion for a new trial or a similar
motion has not been filed by this time, and a request for facts or conclusions
of the law was not previously filed. Tex. R. Civ. P. 329b (d); Tex. R. App. P.
Deadline to file the motion for a new trial or similar. Tex. R. Civ.P. 329b (a).
Deadline to amend the motion for a new trial or a similar motion filed previously. Tex. R. Civ. P. 329b (b).
The deadline for the trial court to order temporary orders after a trial when they are allowed. Tex. Fam. Code § 109.001.
|40||Conclusions of facts and conclusions of the law with expiration within 20 days after the submission of the application; assuming that the request was submitted on the 20th. Tex. R. Civ. P. 297.|
|45||The deadline for the motion is to extend the deadline for filing the notice of appeal if the 30-day deadline is missing 45. Tex. R. App. P. 26.3.|
|50||Notice of finding expired events and conclusions of the law within 30 days after the application is submitted; assuming the request is submitted on the 20th, last day of the reminder. Tex. R. Civ. P. 297.|
|75||Motion for a new trial or a similar motion invalidated by law if there is no written order signed by the trial court. Tex. R. Civ. P. 329b (c).|
|90||Appealing the motion for a new trial or a similar motion is voided by compliance with the law or if the request for factual findings and Conclusions of the Law was filed previously and in a timely manner. Tex. R. Civ. P. 329b (c).|
Trial court's plenary power ends if time extended
by prior, timely filing of Motion for The plenary power of the trial court ends
if the time is prolonged by prior and timely submission of the motion for a new
trial or a similar motion annulled by the law or before the timely submission of
the request for determination of facts and conclusions of the law Tex. R. Civ.
P. 329b (e).
Note: If the trial court overturned the motion for a new trial or a similar motion by a written order signed before the 75th, the plenary power of the trial court ended on the 30th after the order was signed. Tex. R. Civ. P. 329b (e)..