Murray v. Murray

• Docket Number: 04-21-00416-CV
• Decision Date: 21 June 2023
• Parties: Kimi-Lyn MURRAY, Appellant v. Philip MURRAY, Appellee
• Court: Texas Court of Appeals

1

Kimi-Lyn MURRAY, Appellant v. Philip MURRAY, Appellee

No. 04-21-00416-CV

Court of Appeals of Texas, Fourth District, San Antonio

June 21, 2023

From the 45th Judicial District Court, Bexar County, Texas Trial Court No. 2018-CI-19449 Honorable Monique Diaz, Judge Presiding

Sitting: Luz Elena D. Chapa, Justice Irene Rios, Justice Liza A. Rodriguez, Justice

MEMORANDUM OPINION

Luz Elena D. Chapa, Justice

Appellant Kimi-Lyn Murray appeals from a final divorce decree, ending her marriage to appellee Philip Murray. On appeal, Kimi-Lyn asserts the trial court abused its discretion in denying her request for a jury trial; appointing her possessory conservator of one of the couple's children, J.M denying her possession and access to J.M.; and dividing the community estate. We affirm.

Background

Kimi-Lyn and Philip married in 2002. During their marriage, they had two children, H.M. and J.M. In 2017, the couple separated and after a year of separation, Philip filed a petition for divorce citing insupportability and cruelty. He also requested child support and a just and right division of the community estate. Kimi-Lyn filed a counterpetition for divorce citing insupportability and seeking managing conservatorship of the children, child support, and a just and right division of the community estate.

In 2019, Kimi-Lyn and Philip each filed a request for a jury trial and paid the required fee. Thereafter, Kimi-Lyn's counsel withdrew, and Kimi-Lyn represented herself pro se. In February 2020, Philip moved to withdraw his jury demand. A hearing on Philip's motion occurred on February 14, 2020 and on that day, the trial court signed an order permitting Philip to withdraw his request for a jury trial, reimbursing his jury fee deposit, and resetting the trial for April 27, 2020. The order is signed and approved as to form by the parties.

On March 20, 2020, the parties appeared for a temporary injunction hearing, and at the end of the hearing, the parties discussed how many days would be needed for the upcoming trial. Philip's counsel suggested five days, and Kimi-Lyn agreed but also indicated she was uncertain as to whether the courthouse would be open for jury trials due to the Covid-19 pandemic. The trial court clarified the court was open, but it was not open for jury trials. Philip's counsel indicated his request for a jury trial had been withdrawn, and the trial court informed everyone the case was currently set on the nonjury docket.

The parties again appeared on June 18, 2020, and the case proceeded before a bench trial. After a two-day bench trial, the trial court took the matter under advisement. On July 2, 2021, the trial court signed a final divorce decree appointing Kimi-Lyn possessory conservator of J.M.,^[1]denying Kimi-Lyn possession and access to J.M. until she engaged and completed therapy, and dividing the couple's community and separate property. The trial court later entered findings of fact and conclusions of law to support its order. Kimi-Lyn now appeals.

Jury Trial

Kimi-Lyn asserts the trial court abused its discretion in denying her request for a jury trial. She argues she timely filed her request for a jury trial and paid the required fee, and the trial court improperly ruled she waived her right to a jury trial "by virtue of her signature" on the February 14, 2020 order resetting the trial date. Kimi-Lyn points out she never withdrew her request for a jury trial, and there is nothing in the February order indicating the reset trial would be a bench trial. Philip responds by arguing Kimi-Lyn failed to preserve this issue for appeal.

We review a trial court's denial of a jury trial for an abuse of discretion. In re A.L.M.-F., 593 S.W.3d 271, 282 (Tex. 2019); Mercedes-Benz Credit Corp. v Rhyne, 925 S.W.2d 664, 666 (Tex. 1996). A trial court abuses its discretion when its "decision is arbitrary, unreasonable, and without reference to guiding principles." A.L.M.-F., 593 S.W.3d at 282 (quoting Mercedes-Benz, 925 S.W.2d at 666) (internal quotation marks omitted).

The right to a jury trial in a divorce proceeding is guaranteed by the Texas Constitution. Tex. Const. art. I, § 15 ("The right of trial by jury shall remain inviolate."), art. V, § 10 ("In the trial of all causes in the District Courts, the plaintiff or defendant shall, upon application made in open court, have the right of trial by jury . . . ."); Tex. Fam. Code § 6.703 ("In a suit for dissolution of marriage, either party may demand a jury trial . . . ."). The right, however, is "not self-executing," and "a litigant must take certain steps to invoke and perfect his jury right." Matter of Troy S. Poe Tr., 646 S.W.3d 771, 778 (Tex. 2022) (quoting Sunwest Reliance Acquisitions Grp., Inc. v. Provident Nat'l Assurance Co., 875 S.W.2d 385, 387 (Tex. App.-Dallas 1993, no writ) (internal quotation marks omitted). "To invoke a right to a jury trial, a party must file a written request for a jury trial a reasonable time before the date set for trial on the non-jury docket, but not less than thirty days in advance." In re I.I.T., 648 S.W.3d 467, 471 (Tex. App.-San Antonio 2021, no pet.) (citing Tex.R.Civ.P. 216(a)).

Yet, even when a party perfects her right to a jury trial, the right may still be waived by a party's failure to act. See, e.g., Sunwest Reliance Acquisitions Grp., Inc., 875 S.W.2d at 387 ("[W]hen a party has perfected its right to a jury trial in accordance with rule 216 but the trial court instead proceeds to trial without a jury, the party must, in order to preserve any error by the trial court in doing so, either object on the record to the trial court's action or indicate affirmatively in the record it intends to stand on its perfected right to a jury trial."); In re E.S., No. 02-20-00407-CV, 2021 WL 2149627, at *4 (Tex. App.-Fort Worth May 27, 2021, pet. denied.) (mem. op.) ("Mother never objected to the trial court's failure to hold a jury trial. Accordingly, she waived her right to a jury trial by failing to object when the case was called for trial."); In re D.R., 177 S.W.3d 574, 580 (Tex. App.-Houston [1st Dist.] 2005, pet. denied) ("[A] perfected right to a jury trial in a civil case may be waived by a party's failure to act when the trial court proceeds with a bench trial."); In re A.M., 936 S.W.2d 59, 61 (Tex. App.-San Antonio 1996, no writ) (observing perfected right to jury trial in civil case may be waived by party's failure to act when trial court proceeds with bench trial). As recently stated by the Texas Supreme Court, "[i]f a trial court indicates that it will proceed with a bench trial in a case where a jury demand was timely perfected, a demanding party that still wishes to have a jury trial must ensure that the court is aware of the demand." Browder v. Moree, 659 S.W.3d 421, 423 (Tex. 2022) (per curiam).

Here, when the parties appeared at the trial setting, the trial court called the case for announcements, and each party made opening statements and examined three of Philip's witnesses. When Kimi-Lyn called her first witness, Philip objected, arguing Kimi-Lyn failed to disclose the witness during discovery. Kimi-Lyn stated she did not deliberately fail to disclose her witness, and the trial should not have happened because the case had been scheduled for a jury trial. She also stated she assumed the trial would be postponed due to Covid-19. Regarding Philip's objection, she stated she had a conversation with Philip's counsel "specifically about the witnesses," but Philip's counsel conspired against her. The trial court sustained Philip's objection and entered a finding Kimi-Lyn had voluntarily waived her right to a jury trial by signing the February 14, 2020 order granting Philip's request to withdraw his jury demand and setting the trial for April 27, 2020.

Based on these facts, Kimi-Lyn failed to preserve any error committed by the trial court in proceeding with a bench trial because she did not bring her demand for a jury trial to the trial court's attention in a timely manner. See Browder, 659 S.W.3d at 423. When the case was called for announcements, Kimi-Lyn did not object to the trial going forward without a jury or inform the trial court she intended to stand on her perfected right to a jury trial. Instead, she made an opening statement and cross-examined three adverse witnesses before making any reference to her assumption the jury trial would be postponed. See D.R., 177 S.W.3d at 580 (holding appellant's objection to bench trial made during charge conference was not timely); Edmond v. Mark McElhannon/Accent Real Est. Servs., No. 03-17-00760-CV, 2018 WL 3432676, at *1-2 (Tex. App.-Austin July 17, 2018, no pet.) (mem. op.) (holding appellant waived right to jury trial after not objecting to case going forward without jury and testifying, presenting evidence, and cross-examining witnesses); A.M., 936 S.W.2d at 61 (holding appellant waived right to jury trial after appellant appeared, offered opening statement, testified, and cross-examined adverse witnesses).

While we recognize Kimi-Lyn represented herself pro se, we must hold a pro se litigant to the same standards as a licensed attorney and require her to comply with all the applicable laws and procedural rules. See Alam v. Wilshire &amp Scott, P.C., No. 01-06-00604-CV, 2007 WL 2011048, at *2 (Tex. App.-Houston [1st Dist.] July 12, 2007, no pet.) (mem. op.) (pointing out relaxing error preservation rule for pro se litigants would frustrate purpose of rule requiring party to make prompt and specific complaint). The application of the rules "may require a different result when the actor is not a lawyer," and we disfavor "disposing of appeals for harmless procedural defects." Li v. Pemberton Park Cmty. Ass'n, 631 S.W.3d 701, 706 (Tex. 2021) (per curiam); ...