The Jury Demand Strikes Back: Opinions, July 25, 2017

The First and the Fourteenth Courts of Appeal released memorandum opinions yesterday, on jury demands and, essentially, the unlikelihood of success on appeal where a reporter’s record is not filed.

In Wheeler v. Wheeler, No. 01-16-00642-CV, the parents filed dueling mods. The father (a criminal defense lawyer)  filed a jury demand and paid the fee. The proceedings in trial court were, to use the First’s word, “rancorous.” The mother moved to strike the father’s jury demand as a sanction for failure to pay court-ordered amicus fees. The trial court granted the request and struck the jury demand. The father moved for reconsideration of the order, arguing the order violated his constitutional right to a jury trial, but the motion was denied.

After the conclusion of a bench trial, the trial court increased the father’s child support obligation and reappointed the parents as JMCs, with mother as primary. Father appealed.

The refusal to grant a timely-requested jury trial is harmless error only if there are no material fact issues. A party is entitled to a verdict by a jury on the issue of which JMC is to be primary. The First cited its opinion in In re I.R.H. & Z.T.H., No. 01-15-00787-CV, (which I previously blogged about here) for the proposition that “[a] trial court abuses its discretion by striking the jury demand of a party for failure to pay the amicus fee when that party has raised” a material fact issue to be decided by the jury under Tex. Fam. Code §105.002(c). It is surely not a coincidence that the First cited In re I.R.H., and not just because the relevant facts are nearly identical, but because the trial court in that case and the present case are the same.

Because the father presented some evidence in support of his claim to be appointed primary JMC, the trial court erred by depriving him of a jury trial on that issue. The case was reversed and remanded for reinstatement on the jury docket.

In In re Adamski, No. 14-16-00099-CV, the mother and father had one child together during the marriage. A jury trial was held in May, 2015, and remaining issues were tried to the bench in October, 2015. The father was represented by counsel during the jury trial portion, but not the bench trial portion. The father did not appear for the third day of the bench trial portion. On November 13, 2015, the father filed a motion for continuance in which he made allegations of physical abuse of the child by the mother, but no hearing was held on the motion.

On February 2, 2016, the trial court entered a final decree which appointed the mother primary JMC. On appeal, he also did not file a reporter’s record (cue ominous music).

In his first issue on appeal, the father argued the trial court erred in ordering above-guideline support, relying upon his tax returns attached to his inventory which was filed with the trial court. But because he did not obtain a reporter’s record, the Fourteenth could not determine if the returns were admitted into evidence at trial or any other evidence regarding his income was admitted. The issue was overruled.

In his second issue, the father argued the trial court erred in ordering a division that did not conform to the parties’ premarital agreement. But because the COA did not have the reporter’s record, it could not tell if the premarital agreement was admitted into evidence. The issue was overruled.

In his third issue, the father argued the trial court erred in not granting his motion for new trial. But because he never requested a hearing on the motion, the issue was waived. Also, the COA stated in a footnote that even if he hadn’t waived the issue, he did not meet his burden under Craddock in the MNT. The trial court was affirmed.




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