Lipshy v. Lipshy, 18596

• Citation: 525 S.W.2d 222
• Decision Date: 12 June 1975
• Docket Number: No. 18596,18596
• Parties: Esther Ritz LIPSHY, Appellant, v. Ben and Udys LIPSHY et al., Appellees.
• Court: Texas Court of Appeals

Page 222

525 S.W.2d 222

Esther Ritz LIPSHY, Appellant, v. Ben and Udys LIPSHY et al., Appellees.

No. 18596.

Court of Civil Appeals of Texas,

Dallas.

June 12, 1975.

Rehearing Denied July 7, 1975.

John E. Agnew, Carter, Jones, Magee, Rudberg, Moss & Mayes, Dallas, for appellant.

Elgar L. Robertson, John L. Hauer, Akin, Gump, Strauss, Hauer & Feld, Dallas, for appellees.

CLAUDE WILLIAMS, Chief Judge.

Esther Ritz Lipshy brought this action against her husband Bruce Arlen Lipshy, seeking a divorce, division of community property, and the appointment as managing conservator of their three minor children. Bruce Arlen Lipshy responded with a general denial and later filed a cross-action in which he sought to be appointed managing conservator of the children. Subsequently, Ben and Udys Lipshy, the paternal grandparents of the children, intervened and sought to be appointed managing conservators. In her notice of appeal, Esther Ritz Lipshy specifically limits the scope of her appeal to the jury's verdict and entry of judgment by the court concerning custody of the minor children. ¹ In her first two points of error, petitioner contends that the trial court erred in allowing the intervenors and respondent six peremptory challenges each. Before considering these points of error brought forward by petitioner, it is necessary to resolve a preliminary matter presented by the intervenors. Intervenors now take the position that petitioner is estopped from attacking the 'composition or integrity of the jury as she has attempted to do so in her points one, two and three of her brief, for the reason that she has accepted the benefits of all portions of the verdict and the judgment based thereon other than special issues nine and ten of such verdict (regarding custody of the children).' We cannot agree with intervenors and overrule their contention.

It is well settled that when a judgment is severable a litigant may accept the benefits which an adverse party concedes, or is bound to concede under the judgment, and is not estopped to prosecute an appeal which involves only his right to further recovery. Carle v. Carle, 149 Tex. 469, 234 S.W.2d 1002, 1004 (1950). Issues relating to custody of children are severable from issues relating to the decree of divorce, division of property, and other matters. Esparza v. Esparza, 382 S.W.2d 162, 168 (Tex.Civ .App.--Corpus Christi 1964, no writ); Phelps v. Phelps, 307 S.W.2d 956, 958 (Tex.Civ.App.--San Antonio 1957, no writ, J. Pope); Powell v . Powell, 199 S.W.2d 285, 288 (Tex.Civ.App.--Beaumont 1946, no writ); Accord, Texas Employment Commission v. Brasuell, 235 S.W.2d 950, 952 (Tex.Civ.App.--Eastland 1950, writ dism'd); Pritzen v. Pritzen, 197 S .W.2d 363, 366 (Tex.Civ.App.--Beaumont 1946, no writ). A reversal of the judgment regarding managing conservatorship cannot affect her right to benefits already secured under the judgment. Although petitioner's points of error regarding the number of peremptory challenges allowed could affect the entire judgment rendered, she is not estopped from appealing a severable portion thereof. By electing to appeal from only the child custody judgment, it does not necessarily follow that petitioner is treating the entire judgment as both right and wrong. She could be dissatisfied with portions of the judgment and yet not desire to appeal from these portions.

We now turn to a consideration of petitioner's points of error. As previously indicated, petitioner contends in points of error one and two that the trial court committed reversible error by allowing six peremptory challenges each to the respondent husband and intervening grandparents, while allowing petitioner only six peremptory challenges. We sustain these points.

Tex.R.Civ.P. 233 provides that '(e)ach party to a civil suit shall be entitled to six peremptory challenges in a case tried in the district court . . ..' This rule was supplemented by the enactment of Tex.Rev.Civ.Stat.Ann. art. 2151a (Vernon's Supp.1974) which provides:

After proper alignment of parties, it shall be the duty of the court to equalize the number of peremptory challenges provided under Rule 233, Texas Rules of Civil Procedure, Annotated, in accordance with the ends of justice so that no party is given an unequal advantage because of the number of peremptory challenges allowed that party.

The Supreme Court has definitely held that whether a litigant is a party within the meaning of rule 233, so as to entitle him to separate peremptory challenges, depends upon whether his interests are, At least in part, antagonistic to other litigants in a matter with which the jury is to be concerned. Perkins v. Freeman, 518 S.W .2d 532, 533 (Tex.1974); Tamburello v. Welch, 392 S.W.2d 114, 116 (Tex.1965). The Supreme Court in Perkins, supra, pointed out that the existence of this antagonism is to be resolved not only on the basis of the pleadings of the parties but also from a determination of the interest of the parties from information which has been called to the attention of the trial court during pretrial procedures. The question of antagonism must be resolved in the light of the information which was presented to the trial court prior to the time of the exercise of the peremptory challenges and not by circumstances or events which may have transpired following that occasion. City of Amarillo v. Reid, 510 S.W.2d 624, 629 (Tex.Civ.App.--Amarillo 1974, writ ref'd); Accord, Perkins v. Freeman, 518 S.W.2d 532, 533 (Tex.1974). Petitioner argues that at the time the trial court made the decision to allow both respondent husband and intervening grandparents six peremptory challenges each, and only six peremptory challenges to her, that the interests of respondent and intervenors were not antagonistic to one another, at least in part, in matters that the jury was to be concerned with and, therefore, the trial court committed prejudicial error requiring reversal.

While it is true that intervenors' pleadings indicate antagonism, ² the pre-trial evidence presented to the trial court reveals clearly that there was no substantial antagonism between the intervenors and respondent. This conclusion is based primarily on several points.

(1) Intervenor Udys Lipshy, in her deposition, stated:

If Bruce (respondent) can't get custody then I want custody . . .. Because if I have custody, it's like Bruce having custody. He will be there day and night with those children, and you know it as well as I do . . .. 'Oh, I would love for their father to have custody of them, and if he can't, I want it, because he would have custody.

This testimony clearly reveals that intervenors primarily sought to have custody of the minor children awarded to the respondent, or, in the alternative, with the intervenors which would result in respondent having effective custody. Following the jury verdict, intervenor Udys Lipshy attempted to clarify her statement that 'if I have custody, it's like Bruce having custody.' However, as said in City of Amarillo v. Reid, supra, the issue as to the allowance of peremptory challenges is not to be determined by hindsight, and even if this particular statement had been clarified during pre-trial, it fails to negate the intervenors' primary concern which was the appointment of respondent as managing conservator.

(2) Respondent husband testified that he wanted custody of the children, but that if this were not possible then he hoped his parents would be appointed managing conservators. His primary concern was that the children should be raised in a 'Lipshy environment' rather than under the influence of the petitioner and her family.

(3) At the time respondent filed his original answer to petitioner's action for divorce, he was represented by both attorneys Hauer and Robertson. Subsequently, when the intervenors decided to enter the suit, attorney Robertson withdrew as attorney for respondent and filed a petition for intervention on behalf of the grandparents. In the pre-trial testimony, it was revealed that respondent recommended and approved the intervenors' retention of Robertson as their attorney because the attorney was familiar and intrinsically involved with the lawsuit. This recommendation was made after respondent discussed with his father and mother their intervention in the case.

(4) After the trial court ruled that respondent and intervenors would each be allowed six peremptory challenges, petitioner asked the court that respondent and intervenors be instructed not to confer with each other regarding challenges which they were to exercise. During a discussion of this matter, respondent's attorney stated that 'although we are antagonistic to one another, we have . . . on common opponent, and that would be Mr. Carter (petitioner's attorney). In other words, there is a three-party lawsuit, and it's to both our advantages to cut people (who) might favor Mr. Carter.' This statement, in addition to the evidence previously set forth, clearly reveals that the respondent and intervenors were united in a common cause of action against the petitioner on the issue of custody of the children. Each sought to prevent petitioner from being awarded custody of the children. Once this intention was...