In re Interest of M.G.N.

• Citation: 491 S.W.3d 386
• Decision Date: 30 March 2016
• Docket Number: No. 04–12–00108–CV,04–12–00108–CV
• Parties: In the Interest of M.G.N. and A.C.N., Minor Children
• Court: Court of Appeals of Texas

491 S.W.3d 386

In the Interest of M.G.N. and A.C.N., Minor Children

No. 04–12–00108–CV

Court of Appeals of Texas, San Antonio.

Delivered and Filed: March 30, 2016

James N. Higdon, Higdon, Hardy & Zuflacht, L.L.P., San Antonio, TX, for Appellant.

Chase Butler, La Hood, Butler, PLLC, Oscar L. Cantu Jr., Law Offices of Oscar Cantu, San Antonio, TX, for Appellee.

Sitting: Sandee Bryan Marion, Chief Justice, Karen Angelini, Justice, Patricia O. Alvarez, Justice

OPINION

OPINION ON MOTION FOR REHEARING

Opinion by: Patricia O. Alvarez

, Justice

On July 29, 2015, we issued an opinion and judgment in this appeal and George¹ filed a motion for rehearing. Although George's motion for rehearing is denied, we withdraw our opinion and judgment of July 29, 2015, and substitute this opinion and judgment in its stead.

This is a child custody modification suit. On remand from the Texas Supreme Court, we were tasked to determine whether the trial court abused its discretion (1) when it found an impaneled juror statutorily disqualified and substituted an alternate juror, and (2) when it found a juror constitutionally disabled and proceeded with an eleven juror panel. We conclude the trial court acted within its discretion.

We also consider the other issues previously raised by George, but not addressed in our prior opinion: (1) whether the judgment modifying the decree of divorce is supported by the pleadings, (2) whether the trial court erred by excluding relevant evidence concerning the issue of managing conservatorship, and (3) whether the trial court erred in its award of attorney's fees against George. Having found no reversible error, we affirm the trial court's order.

BACKGROUND

The Texas Supreme Court's opinion recounts many of the applicable facts. In re M.G.N. & A.C.N., 441 S.W.3d 246 (Tex.2014)

(per curiam). Because our analysis includes previously unaddressed issues, we include additional facts.

George and Monica entered into a Mediated Settlement Agreement (MSA) on May 3, 2007. The divorce, signed on June 25, 2007, appointed George and Monica joint managing conservators of their two children.

A. The Pleadings

In August of 2009, seeking sole managing conservatorship of the couple's two sons, George sued his ex-wife Monica to modify their final decree of divorce. George filed his original petition to modify conservatorship in Wilson County, Texas even though the parties and their children resided in Bexar County. George's petition alleged that Monica engaged in a pattern of bad acts and omissions contrary to the best interests and physical well-being of the children and requested the trial court mandate Monica's possession be limited and supervised. George also pled for attorney's fees and costs. At or near the same time he filed his original petition, George also filed a suit in Bexar County seeking an injunction against Monica. In the injunction suit, he obtained a temporary restraining order and, shortly thereafter, filed a motion for contempt against Monica for not complying with the temporary restraining order.

Monica retained attorney Jane Deyeso to represent her in the Wilson County suit and the Bexar County injunction suit. After the Wilson County suit was transferred to Bexar County, Monica counterclaimed seeking a modification of child support and the joint managing conservatorship. Monica also sought attorney's fees and costs. Deyeso subsequently withdrew as Monica's attorney due to a conflict. Hector Mendez substituted as Monica's attorney.

When Dr. Joann Murphey, the court-appointed expert, released her report recommending the continuation of the party's joint management relationship, Monica amended her pleadings to adopt Dr. Murphey's recommendations. Based on the joint managing conservatorship, Dr. Murphey recommended the following:

(1) mental health monitoring of the boys by a qualified child mental health professional;

(2) discretion be given to the qualified mental health professional to coordinate parenting disputes relating to exchange of possession, extracurricular activities, and other conditions without modifying the court-ordered schedule of visitation and access;

(3) each parent seek professional help to improve their parenting styles;

(4) the present counseling relationship between the children and their counselor be maintained;

(5) the parties should identify one pediatrician to serve as the primary care provider for the boys;

(6) each parent should participate in individual psychotherapy;

(7) the current possession schedule should continue except for Wednesday overnight possession;

(8) “loving and caring” orders should be eliminated and only the court's orders should be operative; and

(9) the children's domicile should remain in Bexar County.

Monica's amended counter-petition alternatively requested she be appointed sole managing conservator in the event the parties were not retained as joint managing conservators. Monica again sought modification of child support, pursuant to the Child Support Guidelines, and attorney's fees.

B. The Trial and Additional Hearings

The case was called to trial on October 10, 2010. A jury of twelve individuals and an alternate were seated. After three days of testimony, one of the jurors was disqualified and excused based on concerns of impartiality and the alternate juror was seated. Two days later, one of the twelve remaining jurors was declared disabled after reporting to the court that he was ill and could not be in the courtroom. The trial proceeded with eleven jurors.

After six days of testimony, the eleven-person jury returned a verdict on the sole question of managing conservatorship. The jury declined to appoint George as sole managing conservator of the children thereby concluding that George and Monica should remain joint managing conservators.

On November 12, 2010, the claim for attorney's fees was tried before the trial court. Both Deyeso and Mendez testified regarding their attorney's fees.

On March 1, 2011, the trial court issued a very detailed modification order by which, among other things, (1) George and Monica remained joint managing conservators; (2) George retained the superior right to designate their primary residence within Bexar County, Texas; (3) Monica was awarded the superior right of possession of the children at all other times not specifically designated; (4) Monica retained the right to select the children's dentist; (5) the costs of dental and orthodontic care were divided, in unequal parts, and George was ordered to pay 75% of such costs and Monica was ordered to pay 25% of such costs; and (6) George was to pay attorney's fees for Monica's attorneys as follows: $36,404.23 for attorney's fees and expenses of attorney Jane Deyeso and $48,860.00 for attorney's fees and expenses of attorney H.E. Mendez.

On March 31, 2011, George filed a motion for new trial complaining, inter alia, of the following: (1) the trial court erroneously dismissed jurors during the trial, and (2) the trial court erroneously awarded attorney's fees against George. For the first time, George raised a complaint about the failure to segregate the attorney's fees award. On June 10, 2011, after multiple hearings and arguments on the motion for new trial, the trial court granted George's motion for new trial solely on the issue of attorney's fees.

On November 21, 2011, the trial court held a second non-jury trial on the issue of attorney's fees. The trial court again heard testimony from several different attorneys. The next day, the trial court set aside its March 1, 2011 order and issued a final modification order. The final order (1) granted Monica the superior right to possession of the children at all times not specifically designated and (2) increased the attorney's fees assessed against George to include expert fees associated with depositions for attorneys Deyeso and Mendez, additional fees for work performed by Mendez, and attorney's fees and expenses for attorney Ryan Moe.

On December 9, 2011, George filed a second motion for new trial asking for a new trial on, among other items, the attorney's fees. This motion was denied by the trial court.

On January 12, 2012, the trial court entered its findings of fact and conclusions of law addressing the issues relating to the dismissal of jurors and the appointment of an alternate juror, the conservatorship, and the attorney's fees.

C. Rulings on Appeal

In our April 24, 2013 opinion, this court concluded the trial court deprived George of a full, twelve-member jury and denied him the right to jury trial guaranteed by the Texas Constitution by dismissing Juror J.T. when he was not “disabled from sitting.”

On August 22, 2014, the Texas Supreme Court reversed this court's judgment concluding our opinion “failed to properly examine the two dismissals under their appropriate standards: whether the substitution of an alternate was proper due to a statutory disqualification and whether continuing with eleven jurors was proper due to a constitutional disability.” In re M.G.N., 441 S.W.3d at 246

.

We first address the Texas Supreme Court's directive to assess the statutory juror qualification and the constitutional juror disability issues and then turn to George's remaining complaints.

Juror Disqualification

A. Standard of Review

A juror is statutorily disqualified if the juror admits bias or prejudice. See Tex. Gov't Code Ann. § 62.105(1)

, (4) (West 2013); Hyundai Motor Co. v. Vasquez, 189 S.W.3d 743, 751 (Tex.2006) ; Shepherd v. Ledford, 962 S.W.2d 28, 34 (Tex.1998), LaSalle Pipeline L.P. v. Donnell Lands, L.P., 336 S.W.3d 306, 320 (Tex.App.–San Antonio 2010, pet. denied). “[W]hen the evidence does not conclusively establish a [juror's] disqualification, we consider the evidence in the light most favorable to the trial court's ruling.” Jordan v. Sava, Inc., 222 S.W.3d 840, 845 (Tex.App.–Houston [1st Dist.] 2007, no pet.) (citing Buls v. Fuselier, 55 S.W.3d 204, 210 (Tex.App.–Texarkana 2001, no pet.) ). We further afford great deference to the trial...