Trial Proceedings
In connection with this chapter on trial proceedings, the family law practitioner should consult not only the Texas Rules of Civil Procedure and the Texas Rules of Evidence but also the local rules of the county of practice. Often the local rules are stricter than the Texas Rules of Civil Procedure or the Texas Rules of Evidence. The material that follows is applicable to a hearing on temporary orders as well as a final trial.
The court may order the parties and attorneys to attend a conference to consider matters, including motions and pleas, necessity of amending pleadings, setting of discovery schedules, requirement of the written statement of the parties’ contentions, stipulations of fact, identification of legal matters to be ruled on, exchange of lists of fact witnesses and expert witnesses, consideration of the jury charge and questions, marking and exchanging of exhibits, stipulations about admissibility or objections, and reference of any issue to a master or auditor. Tex. R. Civ. P. 166.
Proper notice of the pretrial conference must be given. Vega v. Vega, No. 09-17-00468-CV, 2019 WL 3949463, at *4 (Tex. App.—Beaumont Aug. 22, 2019, no pet.) (mem. op.) (court erred in striking pleadings when counsel filed counterpetition listing different address than one trial court used to mail scheduling letter, pleading did not list fax number, and court did not attempt to provide notice to counsel by using e-file system).
A case may be preferentially set if a motion is filed by a party, the amicus attorney, or the child’s attorney ad litem. The court may give precedence to that hearing over other civil cases if the delay created by ordinary scheduling practices will unreasonably affect the best interests of the child. Tex. Fam. Code § 105.004. The parties must be given reasonable notice of not less than forty-five days of the first trial setting. Tex. R. Civ. P. 245; see Hildebrand v. Hildebrand, No. 01-18-00933-CV, 2020 WL 4118023, at *4–5 (Tex. App.—Houston [1st Dist.] July 21, 2020, no pet.) (mem. op.) (thirty-nine days’ notice not sufficient to take post-answer default).
Any case may be postponed or continued by agreement, with approval of the court. See Tex. R. Civ. P. 330(c)–(d). Motions for continuance are controlled by rules 251–254 of the Texas Rules of Civil Procedure and by any local rules that may apply.
Motions for continuance shall not be granted except for sufficient cause supported by affidavit, or by consent of the parties, or by operation of law. Tex. R. Civ. P. 251.
Motions for continuance generally must be in writing, state the specific facts supporting the motion, and be verified or supported by an affidavit. In re C.F., 565 S.W.3d 832, 844 (Tex. App.—Houston [14th Dist.] 2018, pet. denied) (citing In re Marriage of Harrison, 557 S.W.3d 99, 117 (Tex. App.—Houston [14th Dist.] 2018, pet. denied)). When no written motion is filed it is presumed the court did not abuse its discretion in denying a motion for continuance, but the presumption may be overcome. In re L.N.C., 573 S.W.3d 309, 320–21 (Tex. App.—Houston [14th Dist.] 2019, pet. denied) (father bench-warranted to trial but did not appear on day of trial, and his counsel had not been given explanation for his nonappearance).
Although the rule provides that an affidavit is to be used to support sufficient cause, case law has interpreted the rule to allow either a verification or an affidavit. See Tenneco Inc. v. Enterprise Products Co., 925 S.W.2d 640, 647 (Tex. 1996); Hawthorne v. Guenther, 917 S.W.2d 924, 929 (Tex. App.—Beaumont 1996, writ denied). An unsworn declaration may be used in lieu of a verification or affidavit. Tex. Civ. Prac. & Rem. Code § 132.001. Such a verification must be based on personal knowledge, not on knowledge and belief. Hawthorne, 917 S.W.2d at 930. A verification that is not notarized is insufficient to support a motion for continuance. See Hardwick v. Hardwick, No. 02-15-00325-CV, 2016 WL 5442772 (Tex. App.—Fort Worth Sept. 29, 2016, no pet.) (mem. op.) (husband’s motion for continuance, which lacked notary’s signature, was not verified or supported by affidavit, and court therefore presumed that trial court did not abuse its discretion in denying it). Failure to comply with rule 251’s requirement that a motion for continuance be supported by affidavit will allow an appellate court to presume the trial court did not abuse its discretion by denying the motion. In re D.P.B., No. 05-17-00185-CV, 2018 WL 3014628, at *2 (Tex. App.—Dallas June 15, 2018, no pet.) (mem. op.) (court denied mother’s oral motion for continuance).
If the ground of the motion for continuance is that certain necessary testimony is not available at the time of trial, there shall be an affidavit made that the testimony is material, showing its materiality, and that due diligence has been used to procure the testimony, stating the diligence and the cause of failure, if known. The affidavit must show that the testimony cannot be procured from any other source. If continuance is sought for the absence of a witness, the name and residence address of the witness and what is expected to be proved by the witness must be stated. The motion for continuance must also state that it is not sought for delay only but that justice may be done. If it is a first motion for continuance, it is not necessary to show that the absent testimony cannot be procured from another source. Tex. R. Civ. P. 252; see In re Sakyi, No. 05-20-00574-CV, 2020 WL 4879902, at *4 (Tex. App.—Dallas Aug. 20, 2020, orig. proceeding) (mem. op.) (supreme court emergency orders expressly granted trial court discretion to allow ex-husband to testify remotely about dates of dissolution of prior marriage and purchase of real property).
Absence of counsel (rule 253) and attendance on legislative business (rule 254) are other grounds for continuance. See Tex. R. Civ. P. 253, 254. When the basis for the motion for continuance is the withdrawal of counsel, the movant must show that the failure to be represented at trial was not due to his own fault or negligence. Harrison v. Harrison, 367 S.W.3d 822, 827 (Tex. App.—Houston [14th Dist.] 2012, pet. denied); In re J.P., 365 S.W.3d 833, 836 (Tex. App.—Dallas 2012, no pet.); Jordan-Nolan v. Nolan, No. 07-12-00431-CV, 2014 WL 3764509, at *2 (Tex. App.—Amarillo July 28, 2014, no pet.) (mem. op.) (wife failed to show sufficient cause for continuance where three months after her counsel withdrew she attempted to hire counsel a week before trial and counsel declined to represent her). When counsel withdraws due to the fault of the movant, a trial court generally does not abuse its discretion in denying a motion for continuance. In re Marriage of Harrison, 557 S.W.3d at 119 (testimony of counsel that wife had caused conflict between attorney and client). It is an abuse of discretion to allow an attorney to withdraw on the day of trial without ascertaining the substantive basis of the dispute between client and attorney and, therefore, without determining whether the attorney had good cause to withdraw, and without providing adequate time for the client to secure other representation and for new counsel to investigate the case and prepare for trial. Caddell v. Caddell, 597 S.W.3d 10, 14 (Tex. App.—Houston [14th Dist.] 2020, no pet.) (citing Jackson v. Jackson, 556 S.W.3d 461, 471 (Tex. App.—Houston [1st Dist.] 2018, no pet.)).
Legislative Continuance: A trial court is under the ministerial duty to grant a legislative continuance when the statutory criteria are met. Section 30.003 of the Texas Civil Practice and Remedies Code provides the following:
Except as provided by subsections (c) and (c–1), at any time within 30 days of a date when the legislature is to be in session, at any time during a legislative session, or when the legislature sits as a constitutional convention, the court on application shall continue a case in which a party applying for the continuance or the attorney for that party is a member or member-elect of the legislature and will be or is attending a legislative session. The court shall continue the case until 30 days after the date on which the legislature adjourns.
Tex. Civ. Prac. & Rem. Code § 30.003(b).
Subsection (c) provides that if the attorney for a party to the case is a member or member-elect of the legislature who was employed on or after the thirtieth day before the date on which the suit is set for trial, the continuance is discretionary with the court. Tex. Civ. Prac. & Rem. Code § 30.003(c).
Subsection (c–1) provides that if the attorney for a party to any criminal case is a member or member-elect of the legislature who was employed on or after the fifteenth day on which the suit is set for trial, the continuance is discretionary with the court. Tex. Civ. Prac. & Rem. Code § 30.003(c–1).
The legislature’s intent under section 30.003 was to create a window of time that begins thirty days before session and ends thirty days after session in which a legislator may seek a continuance. During that time frame, when an application for legislative continuance is made, the trial court must grant it. In re Smart, 103 S.W.3d 515, 520–21 (Tex. App.—San Antonio 2003, orig. proceeding) (trial court abused discretion in granting legislative continuance, but other party had adequate remedy at law). Because a hearing on temporary orders is neither a suit nor a trial, a legislative continuance is mandatory even if filed within thirty days of the hearing. In re I.E.F., 345 S.W.3d 637, 640 (Tex. App.—San Antonio 2011, orig. proceeding).
It is not relevant whether the attorney is necessary to the party or the extent of the legislator’s participation in the lawsuit. Amoco Production Co. v. Salyer, 814 S.W.2d 211, 213 (Tex. App.—Corpus Christi–Edinburg 1991, orig. proceeding). But see Broesche v. Jacobson, 218 S.W.3d 267 (Tex. App.—Houston [14th Dist.] 2007, pet. denied) (trial court found wife hired legislator for purposes of delay, and wife’s counsel’s failure to timely notify husband’s counsel of legislator’s retention, which caused husband’s counsel to work over Christmas holiday, was intended to cause husband unnecessary additional litigation fees). The trial court, however, is allowed the discretion in those cases in which the party opposing the continuance alleges that a substantial existing right will be defeated or abridged by delay. In cases of this type the trial court has a duty to conduct a hearing on the allegations. If the allegations are shown to be meritorious, the court should deny the continuance. Waites v. Sondock, 561 S.W.2d 772, 776 (Tex. 1977) (orig. proceeding) (trial court abused discretion in granting continuance rather than recognizing due-process exception; right to child support could not be enforced by any other means).
Stay for Military Service: The Servicemembers Civil Relief Act provides that, under certain circumstances, a stay may be granted to a party to any civil action or proceeding, including any child custody proceeding, who is in military service or has separated from military service within ninety days and who has received notice of the action or proceeding. See 50 U.S.C. § 3932(a).
At any stage before final judgment, the court may, on its own motion, and must, on the servicemember’s application, stay the action for at least ninety days if the following conditions are met. The application must include (1) a letter or other communication setting forth facts stating the manner in which current military duty requirements materially affect the servicemember’s ability to appear and stating a date when the servicemember will be available to appear and (2) a letter or other communication from the servicemember’s commanding officer stating that the servicemember’s current military duty prevents appearance and that military leave for the servicemember has not been authorized. See 50 U.S.C. § 3932(b).
The application does not constitute an appearance for jurisdictional purposes or a waiver of any defense. 50 U.S.C. § 3932(c). An additional stay may be sought under certain circumstances, and the court must appoint counsel for the servicemember if it does not grant the additional stay. See 50 U.S.C. § 3932(d).
A servicemember of the Texas military forces who is ordered to state active duty or to state training and other duty is entitled to the same benefits and protections provided to U.S. servicemembers by the foregoing provisions of 50 U.S.C. § 3932. Tex. Gov’t Code § 437.213.
§ 19.5Inventory Summary; Suggested Property Division
When a suit for dissolution of a marriage is pending and on the motion of a party or on the court’s own motion after notice and hearing, the court may grant temporary orders requiring one or both parties to prepare a sworn inventory and appraisement of the real and personal property owned or claimed by the parties and specifying the form, manner, and substance of the inventory and appraisal and list of debts and liabilities. Tex. Fam. Code § 6.502(a)(1).
Each party in a divorce proceeding has a responsibility to produce evidence of the value of various properties to provide the trial court with a basis on which to make the division of property. Reyes v. Reyes, 458 S.W.3d 613, 620 (Tex. App.—El Paso 2014, no pet.). In order for the court to determine, with some degree of accuracy, the true nature and extent of the estates of the parties (whether community or separate), an accurate inventory of all assets and liabilities should be required by the court. Requiring an accurate inventory and appraisement will increase the probability of the court’s dividing the property in a manner the court deems just and right, with due regard for the rights of each party and any children of the marriage, in accordance with section 7.001. See Tex. Fam. Code § 7.001. The court may not ignore stipulations or inventories that characterize property as separate property when the parties do not dispute the separate property claims and submit proposed property divisions confirming the separate property of the other party. Alcedo v. Alcedo, No. 02-17-00451-CV, 2019 WL 2292979, at *3 (Tex. App.—Fort Worth May 30, 2019, pet. denied) (mem. op.). Additionally, an inventory and appraisement should be the starting point for the preparation of findings of fact and conclusions of law concerning the characterization and value of all assets, liabilities, claims, and offsets on which disputed evidence has been presented. See Tex. Fam. Code § 6.711(a).
Local rules of the county in which the case is filed govern the form of the inventory, the degree of particularity required in its preparation, and the time within which it must be filed.
Having both an inventory summary and a suggested division of community property for the court’s reference available during trial will enable the court to understand the client’s position more clearly. Both the inventory and the suggested division of property may be offered into evidence as a shorthand rendition of the witness’s testimony. If it involves a great number of items of property, reflected by a number of documents, the inventory may be admitted as a summary as allowed by Tex. R. Evid. 1006.
In a suit under title 5 of the Family Code, on the agreement of all parties to the suit, the court may limit attendance at any hearing to those persons who have a direct interest in the suit or in the work of the court. Tex. Fam. Code § 105.003(b).
To exclude a witness from the courtroom during the trial, a party must invoke “the rule.” Tex. R. Civ. P. 267(a) and Tex. R. Evid. 614 require the trial court, at the request of the party, to administer the oath to the witnesses and remove them from the courtroom so they cannot hear the testimony given by other witnesses. A party or a spouse of a party may not be excluded from the courtroom during the trial. Tex. R. Civ. P. 267(b); Tex. R. Evid. 614(a). A person whose presence is shown by a party to be essential to the presentation of the case also may not be excluded from the courtroom during the trial. Tex. R. Civ. P. 267(b); Tex. R. Evid. 614(c). This provision is commonly applied to an expert witness.
Litigants cannot be denied access to the courts simply because they are inmates. While an inmate does not have an absolute right to appear, inmates may be allowed access through alternative means such as affidavits, deposition, videoconferencing, or telephone. In re Marriage of Niyonzima & Kazabukeye, No. 07-18-00287-CV, 2019 WL 923829, at *1 (Tex. App.—Amarillo Feb. 25, 2019, no pet.) (mem. op.).
In a nonjury trial or at a hearing, on the application of a party, the amicus attorney, or the child’s attorney ad litem, the court shall interview a child twelve years of age or older, and may interview a child younger than twelve years of age, in chambers to determine the child’s wishes about conservatorship or about the person who will have the exclusive right to determine the child’s primary residence. The court may also interview a child in chambers on the court’s own motion for such a purpose. Tex. Fam. Code § 153.009(a).
In a nonjury trial or at a hearing, on the application of a party, the amicus attorney, or the child’s attorney ad litem, or on the court’s own motion, the court may interview the child in chambers to determine the child’s wishes about possession, access, or any other issue in the suit affecting the parent-child relationship. Tex. Fam. Code § 153.009(b).
In a jury trial, the court may not interview a child in chambers about an issue on which a party is entitled to a jury verdict. Tex. Fam. Code § 153.009(d).
In any trial or hearing, the court may permit the attorney for a party, the amicus attorney, the child’s guardian ad litem, or the child’s attorney ad litem to be present at the interview. Tex. Fam. Code § 153.009(e). On the motion of a party, the amicus attorney, or the child’s attorney ad litem, or on the court’s own motion, the court shall cause a record of the interview to be made when the child is twelve years of age or older, and the record of the interview shall be a part of the record in the case. Tex. Fam. Code § 153.009(f). Interviewing a child does not diminish the court’s discretion in determining the child’s best interests. Tex. Fam. Code § 153.009(c).
Notwithstanding Tex. Fam. Code § 153.009, a trial court may refuse to interview a child, even one over the age of twelve, if it receives sufficient information supporting a finding that such an interview would jeopardize the child’s safety and welfare. In re C.R.D., No. 12-20-00143-CV, 2021 WL 3779224, at *4 (Tex. App.—Tyler Aug. 25, 2021, no pet. h.) (mem. op.).
The trial court’s failure to interview a child aged twelve or older, although such an interview is mandatory, can nevertheless be harmless error, because a child’s preference is not conclusive of the court’s best-interest determination. In re J.N., No. 05-20-00695-CV, 2022 WL 1211200, at *5–6 (Tex. App.—Dallas Apr. 25, 2022, pet. filed) (mem. op.).
In proceedings for a protective order benefitting a minor child alleged to be the victim of family violence, the trial court abused its discretion by failing to make a record of its interview with the child, because this denied the alleged perpetrator an opportunity to discover the nature of the child’s testimony or offer rebuttal to it. Gabel v. Gabel-Koehne, 649 S.W.3d 590, 598 (Tex. App.—Houston [1st Dist.] 2022, no pet.).
A child is a competent witness unless, after being examined by the court, he appears not to possess sufficient intellect to relate transactions with respect to which he is interrogated. Tex. R. Evid. 601(a)(2). It is error not to permit a child of competent qualifications to testify. Callicott v. Callicott, 364 S.W.2d 455, 458 (Tex. App.—Houston 1963, writ ref’d n.r.e.).
Family Code sections 104.002 through 104.005 set out various conditions under which prerecorded statements, videotaped testimony, or remote televised broadcast of testimony of a child are permissible. See Tex. Fam. Code §§ 104.002–.005. Such evidence would be subject to the rules of evidence. As a general rule, a trial court should view video evidence before ruling on admissibility when the contents of the video are at issue. Diamond Offshore Services, Ltd. v. Williams, 542 S.W.3d 539, 546 (Tex. 2018).
On call of the docket or at any time after a respondent is required to answer, a judgment may be taken by default if the respondent has not previously filed an answer, provided the return of service has been filed with the clerk for the length of time required by rule 107 of the Texas Rules of Civil Procedure. Tex. R. Civ. P. 239. Due to the policy statement and statutory scheme of title 4 of the Family Code, the ten-day period that the return of service must be on file does not apply to cases under title 4. Johnson v. Simmons, 597 S.W.3d 538, 545 (Tex. App.—Fort Worth 2020, pet. denied). But see Lancaster v. Lancaster, No. 01-14-00845-CV, 2015 WL 9480098, at *4 (Tex. App.—Houston [1st Dist.] Dec. 29, 2015, no pet.) (mem. op.).
Notice must be sent immediately to the respondent at the last known mailing address. See Tex. R. Civ. P. 239a. See section 26.3:5 in this manual concerning new trials after default judgments.
To support a default judgment in a family law case, the petitioner must present proof to support the material allegations in the petition despite a respondent’s failure to answer. Agraz v. Carnley, 143 S.W.3d 547, 553 (Tex. App.—Dallas 2004, no pet.); O’Neal v. O’Neal, 69 S.W.3d 347, 349 (Tex. App.—Eastland 2002, no pet.). The record must contain evidence as to the value of any property to be divided as well as evidence as to the appellee’s income or financial ability to pay child support. O’Neal, 69 S.W.3d at 350; see Rodgers v. Perez, No. 03-16-00313-CV, 2017 WL 4348170, at *2 (Tex. App.—Austin Sept. 7, 2017, no pet.) (mem. op.) (testimony did not address nature, size, or components of community estate, nor was any such evidence offered through other means); see also Pena v. Pena, No. 13-17-00585-CV, 2018 WL 3301920, at *3 (Tex. App.—Corpus Christi–Edinburg July 5, 2018, no pet.) (with no evidence of properties’ values, trial court had insufficient evidence to divide property fairly and equitably). A default divorce decree must also be supported by the pleadings. Garcia v. Benavides, No. 04-19-00451-CV, 2020 WL 214758, at *1 (Tex. App.—San Antonio Jan. 15, 2020, no pet.) (mem. op.) (pro se petitioner failed to plead for conservatorship or child support); Lynch v. Lynch, 540 S.W.3d 107, 134–35 (Tex. App.—Houston [1st Dist.] 2017, pet. denied) (citing Tex. R. Civ. P. 301; Stoner v. Thompson, 578 S.W.2d 679, 682 (Tex. 1979)).
Service of Amended Petition: When a petition is amended to ask for more onerous relief, the amended petition may be served under rule 21a of the Texas Rules of Civil Procedure. In re E.A., 287 S.W.3d 1, 4 (Tex. 2009).
Citation by Publication: Where service has been made by publication and no answer has been filed or appearance made, the court must appoint an attorney to defend the suit and the attorney must be paid a reasonable fee for his services. A statement of the evidence, approved and signed by the judge, must be filed as part of the record. Tex. R. Civ. P. 244; see In re Marriage of Serbin, No. 07-18-00349-CV, 2020 WL 856340, at *2 (Tex. App.—Amarillo Feb. 20, 2020, no pet.) (mem. op.) (where record does not contain order appointing attorney or statement of evidence, default judgment cannot stand).
Record: In a suit affecting the parent-child relationship, the Family Code provides that a record shall be made as in civil cases generally unless waived by the parties with the court’s consent. Tex. Fam. Code § 105.003(c). When evidence is offered to support a default judgment, the lack of a reporter’s record entitles the defendant to a new trial because the defendant will be unable to obtain a record of the evidence for review by an appellate court. In re J.W., No. 01-18-00932-CV, 2020 WL 573259, at *3 (Tex. App.—Houston [1st Dist.] Feb, 6, 2020, no pet.) (mem. op.) (suit affecting parent-child relationship).
Protection of Servicemembers: Before default judgment is entered, if the respondent has not made an appearance, an affidavit must be on file stating that the respondent is not in military service. A plaintiff unable to make such a showing must file an alternative affidavit stating either that the defendant is in military service or that the plaintiff is unable to determine whether the defendant is in military service. See 50 U.S.C. § 3931(a), (b)(1). A person who knowingly makes or uses a false affidavit may be fined or imprisoned or both. 50 U.S.C. § 3931(c).
The court may not enter judgment until an attorney has been appointed for a defendant in military service. If the appointed attorney cannot locate the servicemember, actions by the attorney do not waive any defense or otherwise bind the servicemember. 50 U.S.C. § 3931(b)(2). If the court is unable to determine whether the defendant is in military service, the court may require the plaintiff to file a bond to indemnify the defendant, if later found to be in military service, against loss or damage suffered because of the judgment if it is set aside. 50 U.S.C. § 3931(b)(3).
If the defendant is in military service, the court must grant a stay for at least ninety days if the court determines that there may be a defense that cannot be presented without the defendant’s presence or that counsel, after due diligence, has been unable to contact the defendant or otherwise determine whether a meritorious defense exists. 50 U.S.C. § 3931(d). A defendant who receives actual notice may request a stay under 50 U.S.C. § 3932. 50 U.S.C. § 3931(f). See the discussion at section 19.4 above.
A default judgment entered against a servicemember during military service or within sixty days thereafter may be vacated or set aside under certain circumstances. See 50 U.S.C. § 3931(g). See the discussion at section 26.3:5 in this manual.
A servicemember of the Texas military forces who is ordered to state active duty or to state training and other duty is entitled to the same benefits and protections provided to U.S. servicemembers by the foregoing provisions of 50 U.S.C. § 3931. Tex. Gov’t Code § 437.213.
§ 19.9Relief Pending Final Order
After trial, the trial court may make any of a variety of temporary orders pending the rendition of a final order. Tex. Fam. Code §§ 6.501–.507, 105.001. See chapter 4 of this manual for further information about temporary orders.
§ 19.10Motion for Judgment in Nonjury Case
It is error for the trial court to grant a motion for judgment at the close of the plaintiff’s case if the evidence and reasonable inferences raise a material issue of fact. R.W.M. v. J.C.M., 684 S.W.2d 746, 747 (Tex. App.—Corpus Christi–Edinburg 1984, writ ref’d n.r.e.).
A written jury request must be filed with the clerk a reasonable time before the date set for the trial of the case on the nonjury docket, but not less than thirty days in advance, and the jury fee must be paid in the same time period. Tex. R. Civ. P. 216. The time limit applies to both the application and the fee deposit. Huddle v. Huddle, 696 S.W.2d 895, 895 (Tex. 1985) (per curiam).
It was error for the trial court to deny the mother her right to a jury trial when her jury demand, although untimely according to the trial court’s scheduling order, was filed months before the trial actually occurred and there was no showing that a jury case would have interfered with the trial court’s docket, delayed the case, or injured the other party in any way. E.E. v. Texas Department of Family & Protective Services, 598 S.W.3d 389, 396–97 (Tex. App.—Austin 2020, no pet.). When a party contends that the trial court improperly denied a jury demand, that party bears the burden of producing a sufficient record to demonstrate error. In re Marriage of Comstock, 639 S.W.3d 118, 130 (Tex. App.—Houston [1st Dist.] 2021, no pet.).
An untimely jury demand in a suit affecting the parent-child relationship became timely when that suit was consolidated with a CPS case and the trial date of the consolidated matter was reset. Further, the resulting presumption that the jury demand was now timely was not overcome in the absence of evidence establishing that a jury case would have interfered with the trial court’s docket, delayed the case, or injured the other party. In re M.B., No. 05-19-00971-CV, 2019 WL 4509224, at *4 (Tex. App.—Dallas Sept. 19, 2019, orig. proceeding) (mem. op.).
A party may demand a jury trial except in a suit to annul an underage marriage, a suit in which an adoption is sought (including a trial on the issue of denial or revocation of consent to the adoption by the managing conservator), or a suit to adjudicate parentage under Family Code chapter 160. Tex. Fam. Code §§ 6.703, 105.002(a), (b).
In a suit for dissolution of a marriage, a party may demand a jury trial unless the action is a suit to annul a marriage on the grounds that a party was underage. Tex. Fam. Code § 6.703; see also Skop v. Skop, 201 S.W.2d 77 (Tex. App.—Galveston 1947, no writ). A party may not demand a jury trial on the issue of the unconscionability of a premarital or marital agreement. See Tex. Fam. Code §§ 4.006(b), 4.105(b).
A party may demand a jury trial on issues regarding conservatorship, including which joint managing conservator has the exclusive right to designate the primary residence of a child and any restrictions on the geographic area where the residence may be located, but not regarding the issues of child support, a specific term or condition of possession or access, or the rights and duties of a conservator, other than the determination of which joint managing conservator has the exclusive right to designate the child’s primary residence and determinations regarding geographic restrictions on primary residence. Tex. Fam. Code § 105.002(c).
A party may demand a jury trial in an enforcement proceeding if the punishment sought is more than 180 days’ incarceration. Muniz v. Hoffman, 422 U.S. 454 (1975).
A party may demand a jury trial on the fact issues of the division of property. See generally Cockerham v. Cockerham, 527 S.W.2d 162 (Tex. 1975); Lawson v. Lawson, 828 S.W.2d 158 (Tex. App.—Texarkana 1992, writ denied); Baker v. Baker, 104 S.W.2d 531 (Tex. App.—San Antonio 1936, no writ). A jury’s determination of value is binding on the trial court; the division of the estate, however, is properly determined by the court, and a jury’s division is advisory only. Archambault v. Archambault, 763 S.W.2d 50, 51 (Tex. App.—Beaumont 1988, no writ).
If a party demands a jury trial and then does not appear at trial, the party waives its request for a jury. Tex. R. Civ. P. 220. However, a party’s failure to appear at a pre-trial conference does not result in waiver, and it is error for the trial court to deny that party a jury trial as a sanction when the sanction was not just under the standards of Trans-American Natural Gas Corp. v. Powell, 811 S.W.2d 913, 917 (Tex. 1991) (orig. proceeding). In re Montelongo, 586 S.W.3d 518, 521 (Tex. App.—Houston [14th Dist.] 2019, orig. proceeding).
A court may not strike a jury demand as a discovery sanction. In re I.R.H., No. 01-15-00787-CV, 2016 WL 3571398, at *4 (Tex. App.—Houston [1st Dist.] June 30, 2016, no pet.) (mem. op.) (striking jury demand is not sanction provided by Tex. R. Civ. P. 215, and jury demand survives even death-penalty sanctions for discovery abuse).
A trial court has no authority to strike a jury demand as a sanction for failure to pay amicus attorney’s fees when the Family Code expressly authorizes a trial by jury as to the determination of the children’s primary residence. Wheeler v. Wheeler, No. 01-16-00642-CV, 2017 WL 3140027 (Tex. App.—Houston [1st Dist.] July 25, 2017, no pet.) (mem. op.).
A party may rely on another party’s jury request and paid jury fee, and once the case has been set on the jury docket it cannot be withdrawn over the objection of the adverse party. Caldwell v. Barnes, 154 S.W.3d 93, 98 (Tex. 2004) (per curiam).
§ 19.12Number of Peremptory Challenges
Each party to a civil suit is entitled to six peremptory challenges in a case tried in district court. Cases tried in statutory county courts with family law jurisdiction may have only six jurors and therefore only three peremptory challenges. Tex. R. Civ. P. 233.
In multiple-party cases, the trial judge must decide whether any of the litigants aligned on the same side of the docket are antagonistic with respect to any issue that will be presented to the jury. The term side does not mean “party,” “litigant,” or “person”; rather, it means one or more litigants with common interests on the matters with which the jury is concerned. Tex. R. Civ. P. 233.
In multiple-party cases, on motion of any litigant made before the exercise of peremptory challenges, the trial judge must equalize the number of peremptory challenges so that no litigant or side is given unfair advantage as a result of the alignment of the litigants and the award of peremptory challenges to each litigant or side. In allocating the challenges, the court shall consider any matters brought to the trial judge’s attention concerning the ends of justice and the elimination of unfair advantage. Tex. R. Civ. P. 233.
Case law that developed before the 1984 amendment of rule 233 may provide guidance on allocation of peremptory challenges. For example, when paternal grandparents who intervened in a divorce action primarily sought to have custody of the minor children awarded to the husband or, in the alternative, to the intervenors, which would result in the husband’s having effective custody, the relationship between the intervenors and the husband, insofar as managing conservatorship was concerned, was not antagonistic and hostile to the extent that the intervenors and the husband were each entitled to six peremptory challenges; and awarding the intervenors and the husband twice the number of challenges as the wife was awarded denied the wife a fair trial. Lipshy v. Lipshy, 525 S.W.2d 222, 226 (Tex. App.—Dallas 1975, writ dism’d).
The motion in limine is not addressed by a particular rule of civil procedure. However, it has been defined by the Supreme Court of Texas as follows:
The purpose in filing a motion in limine to suppress evidence or to instruct opposing counsel not to offer it is to prevent the asking of prejudicial questions and the making of prejudicial statements in the presence of the jury with respect to matters which have no proper bearing on the issues in the case or on the rights of the parties to the suit. It is the prejudicial effect of the questions asked or statements made in connection with the offer of the evidence, not the prejudicial effect of the evidence itself, which a motion in limine is intended to reach.
Bridges v. City of Richardson, 354 S.W.2d 366, 367 (Tex. 1962) (per curiam).
The motion should be presented before voir dire examination of the jury and preferably at pretrial conference. However, it is not reversible error for the court to rule on the motion after the parties announce ready for trial. City of Houston v. Watson, 376 S.W.2d 23, 33 (Tex. App.—Houston 1964, writ ref’d n.r.e.).
If a motion in limine is overruled, a judgment will not be reversed unless in fact the questions were asked or the evidence was offered. If they were in fact asked or offered, an objection made at the time is necessary to preserve the right to complain on appeal that the questions asked or the evidence tendered was so prejudicial that the mere asking or tendering should require reversal. In neither case—(1) questions not asked or evidence not offered nor (2) questions asked or evidence offered—should the error of the trial court in overruling the motion in limine be regarded as harmful or reversible error. Hartford Accident & Indemnity Co. v. McCardell, 369 S.W.2d 331, 335 (Tex. 1963). When the trial court properly instructs the jury to disregard the statements made in violation of the court’s instruction, it is presumed the jury followed these instructions unless there is evidence to the contrary in the record. See Epps v. Deboise, 537 S.W.3d 238, 251 (Tex. App.—Houston [1st Dist.] 2017, no pet.).
§ 19.14Requests for Questions, Definitions, and Instructions
Either party may present to the court and request written questions, definitions, and instructions to be given to the jury. The court may give them or a part of them or may refuse to give them as may be proper. Such a request shall be made separate and apart from the party’s objections to the court’s charge. Tex. R. Civ. P. 273; see also Tex. R. Civ. P. 226a. Suggested questions, definitions, and instructions may be found in the current edition of State Bar of Texas, Texas Pattern Jury Charges—Family and Probate.
In all jury cases the court shall, whenever feasible, submit the cause on broad-form questions. The court shall submit such instructions and definitions as are proper to enable the jury to render a verdict. Tex. R. Civ. P. 277. The use of broad-form questions is not permitted in a case involving the termination of parental rights. (Texas Department of Human Services v. E.B., 802 S.W.2d 647, 649 (Tex. 1990), in which the court had specifically approved broad-form submission, is superseded by amendment of rule 277 effective May 1, 2020. See Texas Supreme Court, Order Amending Texas Rule of Civil Procedure 277, Misc. Docket No. 20-9008 (Jan. 8, 2020), 83 Tex. B.J. 104 (2020); proposed rule subject to change in response to public comments to be sent by Apr. 1, 2020.)
Inferential rebuttal issues shall not be submitted. The placing of the burden of proof may be accomplished by instructions rather than by inclusion in the question. Tex. R. Civ. P. 277.
If the judge refuses or modifies a properly requested instruction, question, or definition, the judge shall so endorse the request, which will constitute a bill of exceptions. Tex. R. Civ. P. 276.
For guidance on the content of jury charges, including commentary on the underlying statutory and case law, see the current edition of State Bar of Texas, Texas Pattern Jury Charges—Family and Probate.
§ 19.16Objection to Jury Charge
A party objecting to a charge must point out distinctly the matter to which he objects and the grounds of his objection. Any complaint about a question, definition, or instruction, because of any defect, omission, or fault in pleading, is waived unless specifically included in the objections. If the complaining party’s objection or requested question, definition, or instruction is in the opinion of the appellate court obscured or concealed by voluminous unfounded objections, minute differentiations, or numerous unnecessary requests, the objection or request shall be untenable. No objection to one part of the charge may be adopted and applied to another part of the charge by reference only. Tex. R. Civ. P. 274.
Objections must be presented to the court in writing or dictated to the court reporter in the presence of the court and opposing counsel. Tex. R. Civ. P. 272. Failure to submit a question, a definition, or an explanatory instruction shall not be deemed a ground for reversal unless it was requested in substantially correct form in writing. Tex. R. Civ. P. 278.
§ 19.17Judgment Non Obstante Veredicto/Directed Verdict
On motion and reasonable notice, the court may render judgment non obstante veredicto if a directed verdict would have been proper. On like motion and notice, the court may disregard any jury finding on a question that has no support in the evidence. Only one final judgment shall be rendered in any cause except when it is otherwise specifically provided by law. Tex. R. Civ. P. 301.
If judgment is rendered non obstante veredicto or notwithstanding the findings of a jury on one or more questions, an appellee may bring forward by cross-point contained in his brief filed in the court of appeals any ground that would have vitiated the verdict or would have prevented an affirmance of the judgment had one been rendered by the trial court in harmony with the verdict, including the ground that one or more of the jury’s findings have insufficient support in the evidence or are against the overwhelming preponderance of the evidence as a matter of fact, and the ground that the verdict and judgment based on it should be set aside because of improper argument of counsel. Tex. R. Civ. P. 324(c).
In suits affecting the parent-child relationship, the court may not contravene a jury verdict on the issue of the appointment of a sole managing conservator, the appointment of joint managing conservators, the appointment of a possessory conservator, the determination of which joint managing conservator has the exclusive right to designate the child’s primary residence, or any restrictions on the geographic area where the residence may be located. Tex. Fam. Code § 105.002(c)(1).
A motion for directed verdict shall state the specific grounds. Tex. R. Civ. P. 268. There are three situations in which a directed verdict may be appropriate: (1) when a party fails to present evidence raising a fact issue essential to that party’s right of recovery; (2) if the proponent of the theory of recovery admits a defense or the evidence conclusively establishes a defense to the proponent’s theory of recovery; or (3) a legal principle precludes recovery. Moon v. Scheef, No. 05-20-00105-CV, 2022 WL 854916, at *2 (Tex. App.—Dallas Mar. 23, 2022, pet. filed) (mem. op.).
To challenge the legal sufficiency of the evidence supporting a jury’s verdict, a party must raise the legal sufficiency challenge with the trial court in either (1) a motion for instructed verdict, (2) a motion for judgment notwithstanding the verdict, (3) an objection to the submission of the question to the jury, (4) a motion to disregard the jury’s answer to a vital fact question, or (5) a motion for new trial. In re A.L., 486 S.W.3d 129, 130 (Tex. App.—Texarkana 2016, no pet.).
All subpoenas must be issued in the name of “The State of Texas” and contain these elements: the style; the cause number; the court; the date of issuance; identification of the subpoenaed person; the time, place, and nature of the action required by the subpoenaed person; the name of the party causing the subpoena to be issued (and the party’s attorney, if any); the text contained in rule 176.8(a); and the signature of the issuing person. Tex. R. Civ. P. 176.1.
Properly issued subpoenas are generally valid within a radius of 150 miles from the county in which the subpoenaed person resides or is served. Tex. R. Civ. P. 176.3(a).
A witness is entitled to a fee of $10 for each day the witness is required to attend trial, and the subpoena must include the fee for one day. Tex. Civ. Prac. & Rem. Code § 22.001(a), (b). The court may not impose a fine or issue a writ of attachment for a witness who was subpoenaed to attend and did not appear until the subpoenaing party provides an affidavit stating that all fees due the witness were paid or tendered. Tex. R. Civ. P. 176.8(b).
A subpoena must command the person to attend and give testimony at a deposition, hearing, or trial; produce and permit inspection and copying of designated documents or tangible things in the person’s possession, custody, or control; or both. Tex. R. Civ. P. 176.2.
A subpoena may be issued by an attorney authorized to practice in Texas, the clerk’s office, or an officer authorized to take depositions in Texas. Tex. R. Civ. P. 176.4. The subpoena may be served by a sheriff or constable or any nonparty person over eighteen years of age. Tex. R. Civ. P. 176.5(a). Proof of service must be documented either by memorandum signed by the witness acknowledging acceptance of the subpoena or by a statement by the person serving, which must include the date, time, and manner of service and the name of the person served. Tex. R. Civ. P. 176.5(b).
A party causing a subpoena to issue must take reasonable steps to avoid undue burden and expense on the person served. Tex. R. Civ. P. 176.7.
A subpoena may not be used for discovery to an extent, in a manner, or at a time other than as provided by the discovery rules. Tex. R. Civ. P. 176.3(b).
Failure by a subpoenaed person to obey the subpoena, without adequate excuse, may be deemed a contempt of court. (Requirements related to the response, objections, and protective orders are detailed in rule 176.6.) On a finding of contempt, the court may punish the violating party by fine, confinement, or both. Tex. R. Civ. P. 176.8(a).
Before a fine may be imposed on a person who has failed to comply with a subpoena or the person be attached, there must be filed an affidavit of the party requesting the subpoena, or the attorney of record, that all fees due the witness by law were paid or tendered. Tex. R. Civ. P. 176.8(b).
Attorney’s fees paid to prosecute or defend a lawsuit cannot be recovered absent a statute or contract that allows for their recovery. Akin, Gump, Strauss, Hauer & Feld, L.L.P. v. National Development & Research Corp., 299 S.W.3d 106, 120 (Tex. 2009); In re Marriage of Pyrtle, 433 S.W.3d 152, 160 (Tex. App.—Dallas 2014, pet. denied); see also Tony Gullo Motors I, L.P. v. Chapa, 212 S.W.3d 299, 310–11 (Tex. 2006). Attorney’s fees are specifically authorized by statute in many circumstances encountered by the family law practitioner. See section 20.41 in this manual.
Proving up attorney’s fees, including establishing reasonableness and necessity, is discussed in part II of chapter 20 (sections 20.11–20.23).
Relief granted by the court must be supported by the pleadings. See Tex. R. Civ. P. 301. Because the best interests of the child are the principal concern in child custody cases, technical pleading rules in such cases are of reduced significance, but the pleadings must nevertheless notify the opposing party of the claim involved. Messier v. Messier, 389 S.W.3d 904, 907 (Tex. App.—Houston [14th Dist.] 2012, no pet.); see King v. Lyons, 457 S.W.3d 122 (Tex. App.—Houston [1st Dist.] 2014, no pet.).
While issues may be tried by consent, when evidence at trial is relevant to an issue that has been pleaded, it will not be regarded as evidence of trial of an unpleaded issue. King, 457 S.W.3d at 133. Unless waived by a failure to object, a trial amendment must be filed as a written pleading; an oral amendment at trial is insufficient to modify the pleadings. In re J.C.J., No. 05-14-01449-CV, 2016 WL 345942, at *8 (Tex. App.—Dallas Jan. 28, 2016, no pet.) (mem. op.).
As amended for cases filed on or after January 1, 2021, rule 169 of the Texas Rules of Civil Procedure no longer exempts from the expedited actions process suits in which a party has filed a claim governed by the Family Code. See Tex. R. Civ. P. 169.
Rule 169 applies only to suits in which all claimants, other than counterclaimants, affirmatively plead that they seek only monetary relief aggregating $250,000 or less, excluding interest, statutory or punitive damages and penalties, and attorney’s fees and costs. Tex. R. Civ. P. 196(a). Under the rule, discovery is limited, and an early trial date must be set on request. The length of trial is restricted. Expert witness challenges are limited. See Tex. R. Civ. P. 196(d)(1)–(3), (d)(5). The greatest effect of rule 169 on a family law suit is the requirement to participate in alternative dispute resolution once, but that requirement does not apply if the parties agree not to engage in ADR. Tex. R. Civ. P. 196(d)(4).
A suit is removed from the expedited actions process on motion and a showing of good cause or by the filing of an amended or supplemental pleading for any relief other than monetary relief over $250,000. Tex. R. Civ. P. 196(c)(1).
The vast majority of family law litigation involves some sort of nonmonetary relief. Enforcement of a property division (whether under chapter 9 of the Family Code or brought as a breach of contract claim outside the Code) or a postdivorce suit to partition undivided community property may be subject to rule 169. A party can avoid the application of rule 169 by also requesting nonmonetary relief, such as clarification of the court’s order or specific performance, including delivery of property.
It is unclear whether courts will interpret child support enforcement suits in which only a judgment for child support arrearages is requested as being subject to rule 169. Again, this issue may be resolved by a request for nonmonetary relief, such as a request for a finding of contempt, for the posting of bond or other security, or even for withholding of income to pay the arrears.
Even if rule 169 applies to a motion for enforcement of a property division or a child support order, the ramifications are minor. The restrictions under the process have limited effect in enforcement suits, which generally are resolved quickly, often without any discovery.
COMMENT: For additional information on trial proceedings, see the current edition of State Bar of Texas, Texas Pattern Jury Charges—Family and Probate and Predicates Manual 4.0 (Texas Family Law Foundation 2021).