In re Of

• Court: Texas Court of Appeals
• Writing for the Court: Opinion by: Patricia O. Alvarez, Justice
• Decision Date: 29 July 2015
• Docket Number: No. 04-12-00108-CV,04-12-00108-CV
• Citation: In re M.G.N., No. 04-12-00108-CV (Tex. App. Jul 29, 2015)
• Parties: IN THE INTEREST OF M.G.N. and A.C.N., Minor Children

IN THE INTEREST OF M.G.N. and A.C.N., Minor Children

No. 04-12-00108-CV

Fourth Court of Appeals San Antonio, Texas

July 29, 2015

OPINION

From the 57th Judicial District Court, Bexar County, Texas

Trial Court No. 2008-CI-17947

Honorable Antonia Arteaga, Judge Presiding

Opinion by: Patricia O. Alvarez, Justice

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

AFFIRMED

This is a child custody modification suit. On remand from the Texas Supreme Court, we must 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 Appellant 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 the Interest of M.G.N. & A.C.N., Minor Children, 441 S.W.3d 246 (Tex. 2014) (per curiam). Because our analysis includes previously unaddressed issues, we include additional facts.

George and Monica¹ entered into a Mediated Settlement Agreement 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'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. Monica counterclaimed seeking child support and her appointment as sole managing conservator. Monica also sought attorney's fees and costs.

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 recommendation. 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.

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 calling the court and explaining 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 March 1, 2011, the trial court issued a modification order by which, among other things: (1) George retained the superior right to possession of the children at all times not specifically designated and the right to designate their primary residence; (2) Monica retained the right to select the children's dentist; (3) the costs of dental and orthodontic care were divided, in unequal parts,between George (75%) and Monica (25%); and (4) George was to pay attorney's fees for two of Monica's attorneys.

George filed a motion for new trial complaining of the trial court's assessment of attorney's fees. George's motion for new trial raised, for the first time, a complaint about the failure to segregate the attorney's fees award.

On November 22, 2011, 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 fees charges by all three attorneys representing Monica.

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 Turney 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 supreme court's directive to assess the statutory juror qualification and the constitutional juror disability issues and then turn to the remaining complaints raised by George on appeal.

JURORS

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); 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, 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 court's evaluation of a juror because "trial judges are present in the courtroom and are in the best position to evaluate the sincerity and attitude" of the juror. Murff v. Pass, 249 S.W.3d 407, 411 (Tex. 2008) (citing Hyundai Motor Co., 189 S.W.3d at 755). We will not disturb a trial court's disqualification of a panel member absent an abuse of discretion. Jordan, 222 S.W.3d at 845 (citing Buls, 55 S.W.3d at 210).

B. Statutory Disqualification of Impaneled Member of the Jury (Juror Turney)

1. Arguments of the Parties

George contends the trial court abused its discretion when it dismissed a juror because he was not disqualified from serving on the jury. George argues the juror's statements and actions were insufficient to disqualify him as a matter of law and the juror was removed based only on his view of evidence developed at trial.

Monica, on the other hand, contends among other things that because the juror allowed himself to be persuaded by his personal bias and prejudice, the juror was disqualified from jury service duty.

2. Texas Government Code Section 62.105(4): Juror with Bias or Prejudice

Bias is "an inclination toward one side of an issue rather than to the other," while prejudice means "prejudgment, and consequently embraces bias; the converse is not true." Compton v. Henrie, 364 S.W.2d 179, 181-82 (Tex. 1963); Hyundai Motor Co., 189 S.W.3d at 751 ("Fair and impartial jurors reach a verdict based on the evidence, and not on bias or prejudice."). Bias or prejudice is not presumed; to prevail on a bias challenge, the party must show a potential juror will not act with impartiality. Buls, 55 S.W.3d at 210; see also Guerra v. Wal-Mart Stores, Inc., 943 S.W.2d 56, 59 (Tex. App.—San Antonio 1997, writ denied). A trial court makes a factual determination, based on the entire record, whether a juror's state of mind leads to the natural inference of bias, which will affect the juror's actions. Malone v. Foster, 977 S.W.2d 562, 564 (Tex. 1998); Swap Shop v. Fortune, 365 S.W.2d 151, 154 (Tex. 1963); Compton, 364 S.W.2d at 182.

3. Venireman Joel Turney and Trial Court Findings

During voir dire, venireman Joel Turney was questioned by both parties. He explained he was an electrical and lighting contractor, verified he did not know any of the parties, and opined he could be fair and impartial. Venireman Turney was selected to serve on the jury.

The first witness called to testify was George. During cross-examination, George was questioned regarding a business associate, Tim Smoot. Monica's attorney suggested George was responsible for "running [Smoot's] business into the ground" and "cheating [Smoot] in the business." After George's testimony concluded, the jury was released for the day, and Juror...