
Opinion issued May 17, 2007











In The
Court of Appeals
For The
First District of Texas



NO. 01-06-00445-CV



JAMIE R. O'CONNOR, Appellant

V.

DANIEL K. O'CONNOR, Appellee



On Appeal from the 310th District Court
Harris County, Texas
Trial Court Cause No. 2004-52791



O P I N I O N
	Appellant, Jamie R. O'Connor, appeals the final decree of divorce rendered by
the trial court.  She presents four issues complaining that the trial court erred by (1)
denying her motion for continuance, (2) denying her request for a jury trial, (3)
dividing the community property unjustly, and (4) entering an injunction barring her
from having any periods of possession or any access to the minor children.  We
affirm.  
BACKGROUND

	Appellant and appellee, Daniel K. O'Connor, were married in 1989.  On
September 27, 2004, appellee filed for divorce.  The trial court signed temporary
orders that gave appellant possession of the family home and the right to determine
the residence of the two minor children and required appellee to pay child support to
appellant.  The final decree of divorce was signed on April 12, 2006.  
	The record indicates that, during the 18.5 months in which this case was
pending, appellant had four attorneys.  Each of those attorneys represented appellant
for a period ranging from one to four months, with a gap of one to one and one-half
months between attorneys, during which time appellant appeared pro se.  Appellant's
fourth attorney was court-appointed and was to be paid from funds deposited in the
registry of the court by appellee.  That attorney filed a  motion to withdraw as
counsel, which was granted on November 18, 2005.  From that date through the filing
of the notice of appeal, appellant again appeared pro se.  
	The first trial setting was May 9, 2005.  The trial court granted appellant's
motion for continuance for that date and for the subsequent settings for July 18, 2005
and August 15, 2005.  Each of the motions stated that there had been inadequate time
for discovery, and the third motion also cited the lack of counsel as a reason for a
continuance.  
	On August 3, 2005, the trial court appointed an amicus attorney to assist the
court in protecting the children's best interests.  See Tex. Fam. Code Ann.
§§ 107.001, 107.003, 107.005, 107.021, 107.023 (Vernon Supp. 2006).  Thereafter,
the amicus attorney participated in all trial settings.  
	The case was called to trial on September 19, 2005.  Appellee appeared with
his counsel, and the amicus attorney appeared, but appellant did not.  The trial court
received a fax on Cypress Creek Hospital letterhead stating that appellant had been
under the care of a physician since September 15, 2005.  The trial court clarified that
Cypress Creek Hospital is a psychiatric hospital.  In light of that fact, the amicus
attorney requested the court to recess the trial and to entertain an emergency motion
regarding the children.  Although the trial court and the parties were unable to
confirm that appellant had been admitted to the hospital, the trial court granted the
request to proceed on the emergency motion.  
	Appellee's counsel had subpoenaed two witnesses: Dr. Richard Krummel,
appellant's former treating psychologist, and Dr. Lawrence Abrams, the court-appointed psychologist.  Krummel testified that he had treated appellant from April
2003 to August 2005.  Initially, he saw her weekly, but for the last year, he saw her
twice weekly due to her increased stress level, her emotional instability, and her
deterioration into delusional, paranoid thought.  Early in her therapy, she showed
signs of moderate to severe depression.  Later, she began to exhibit characteristics of
bipolar disorder and then delusional thoughts.  She resisted his suggestions that she
seek treatment at an inpatient facility or get additional help from a psychiatrist.  She
told him once that she had taken her son's medication, which had been prescribed for
his attention deficit disorder.  Krummel testified that he would not recommend that
a person with appellant's symptoms have the primary residence for eight- and ten-year-old children.  
	Abrams testified that he had met with appellee four times, the two children
twice, and appellant twice.  He testified that appellee was capable of taking care of
the children and that the children were friendly and comfortable with him.  He further
testified that he was not able to complete the interview material with appellant
because she talked about a conspiracy against her and other problems.  He said that
she apologized for having suspected that he was involved in the conspiracy.  He
referred to her "incessant dialogue" and "repetitive material" and said that she made
references to evidence that "went on and on without anything being pinned down." 
He expressed concern about her paranoia and fixed delusions, such as believing
people were buying her property and stealing her life, which "can be repeated for
hours," along with her evidence, which was "totally illogical."  He described her as
being "on the edge of a cliff about ready to fall over."  
	Appellee testified that, since December, appellant had asked him to take the
children for increasing amounts of time.  He said that she explained that she needed
to concentrate to prepare for court and to research.  He testified that he had the
children for all but six days of June and all of July.  He also testified that she
threatened to have him put in jail, said that the FBI was going to arrest him, and
accused him of conspiring with his attorney to defraud her.  Appellee testified that,
when the children were living with appellant, he had to keep his son's medication
because, otherwise, appellant would take it rather than give it to their son.  Appellee
said that he would go to appellant's home each morning to give his son the
medication.  
	At the end of the hearing, the trial court awarded appellee temporary managing
conservatorship with the right to determine residency of the children and the right to
move back into the family home.  The court also abated child support.  
	The court reconvened for trial proceedings on December 19, 2005.  After
testimony from a witness regarding appellee's involvement in the children's activities
and during testimony from appellee, appellant, who was appearing pro se, objected
to appellee's testimony and to the trial, saying that the trial court refused to consider
her motion for disqualification of the court, which was based on the court's close
relationship with a party involved in the case, the associate judge, whom appellant
believed to be a silent partner in a land and oil deal with appellee and his attorney. 
The trial court stated that, although he believed that both he and his associate judge
were not recused, he would refer the case to the Administrative Judge for
reassignment.  The trial court then declined appellant's request to rule on pending
motions.  The case was transferred to Judge Lisa Millard, who set trial for February
1, 2006.  The case was reset by agreement of the parties to March 27, 2006.  The trial
court denied appellant's motion for continuance, which was filed March 13, and the
trial on the merits began on March 27.  
	Before the trial began, appellant asked the court about the motions she had
filed that were to be heard that morning.  The court said, "And you weren't present
this morning, so they were denied."  There was no further discussion regarding the
motions.  
	During the trial, Krummel and Abrams again testified regarding appellant's
mental problems.  In addition, Tracy Lampson, a friend and neighbor of the
O'Connors testified regarding positive interaction she had observed between appellee
and his children.  She also testified about appellant's inappropriate and erratic
behavior, such as arguing with appellee in front of the children, telling the children
that their father was going to federal prison and that she was going to have Mr.
Lampson, the boys' baseball coach, put in jail.  Lampson testified that the other
parents did not want the O'Connor's son on the team because appellant was very
disruptive at the games.  Llampson further testified that she stopped allowing her son
to go to appellant's home because appellant did not supervise the children and once
allowed them to go to a store several blocks away when they were only nine years
old.  She said that since the children have been living with appellee, she allows her
son to visit and to spend the night with the O'Connors' son.  
	The trial court rendered a decree appointing appellee sole managing
conservator and appellant possessory conservator.  The court found it in the
children's best interest not to order visitation.  Appellee was awarded the residence
and all furnishings.  Each party was awarded the bank account in his or her name. 
Appellee was awarded the 1997 Ford truck and appellant was awarded the 2004
Tahoe.  Each party was awarded his or her retirement or pension plan, any insurance
policy in his or her name, and his or her jewelry and personal property.  Appellee was
ordered responsible for all debt listed in the inventory.  The trial court permanently
enjoined appellant from speaking or writing any obscene, disparaging, or demeaning
remarks to or about appellee in the children's presence; from discussing or referring
to any issues or proceedings related to the present lawsuit in the children's presence;
from going within 200 yards of appellee's residence; from placing more than one
telephone call daily to appellee or the children; from placing any telephone call to
appellee or the children between 8:00 p.m. and 8:00 a.m.  
DISCUSSION

1.  Amicus Attorney

	Because the amicus attorney has filed a brief, we first address whether the
amicus attorney has a role in this Court.  In response to questions by this Court, the
amicus attorney states that the statute does not define whom the amicus attorney
represents.  She reasons that, because she is charged with assisting the court and, by
statute, is to "participate in the litigation to the same extent as an attorney for a party,"
she would be derelict in her duties if she did not file a brief in this Court.  She quotes
a paper presented at a family law course, which states, "When a court-appointed
attorney has not been discharged by the court, the representation continues through
the appellate process."  Reginald A. Hirsch, Joseph Indelicato, Jr., and Lauren E.
Waddell, Who Represents the Child?  Not Me, I Am the Amicus Attorney!, 32nd
Annual Advanced Family Law Course, August 14-17, 2006, San Antonio, Texas.  
	The statute defines an amicus attorney as follows:
		"Amicus attorney" means an attorney appointed by the court in a
suit, other than a suit filed by a governmental entity, whose role is to
provide legal services necessary to assist the court in protecting a child's
best interests rather than to provide legal services to the child.  

Tex. Fam. Code Ann. § 107.001 (Vernon Supp. 2006).  Under the Family Code, an
amicus attorney and an attorney ad litem appointed to represent a child have the same
duties.  Tex. Fam. Code Ann. § 107.003 (Vernon Supp. 2006).  However, there is
one important distinction.  The attorney ad litem represents the child.  The amicus
attorney is appointed specifically to assist the court.  And the plain language of the
statutory definition of amicus attorney can mean only that the amicus attorney assists
the court that appointed her.  See id.  To whatever extent the trial court has a role
during an appeal of the final decree, the amicus attorney may assist that court.  But
the amicus attorney represents neither an appellant nor an appellee and therefore has
no basis for filing a brief in the appeal.  Nothing in the Family Code indicates that the
amicus attorney should participate in an appeal.  See Tex. Fam. Code Ann.
§§ 107.001-.023 (Vernon Supp. 2006).
	Because the amicus attorney is "to provide legal services to assist the court,"
the trial court is, in effect, the amicus attorney's client for a limited purpose.  But the
trial court is not a party either to the underlying case or in this appeal.  Therefore it
is as inappropriate for the amicus attorney to file a brief as it would be for the trial
court to file one.  Accordingly, we do not consider the amicus attorney's brief.
2.  Motion for Continuance

	In her first issue, appellant contends  that the trial court erred by denying her
motion for continuance.  A motion for continuance may 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.  When requesting additional time for discovery, the
movant must aver, by affidavit, that the matters to be discovered are material, show
the materiality of the discovery, and show that she has used due diligence to procure
the matters.  See Tex. R. Civ. P. 252; Hatteberg v. Hatteberg, 933 S.W.2d 522, 527
(Tex. App.--Houston [1st Dist.] 1994, no writ) (stating that, when requesting
additional time for discovery, rule 252 must be complied with under oath).  Absence
of counsel alone is not good cause for a continuance.  Tex. R. Civ. P. 253.  We review
a trial court's denial of a motion for continuance for abuse of discretion.  Yowell v.
Piper Aircraft Corp., 703 S.W.2d 630, 635 (Tex. 1986). 
	Appellant asserted in her motion for continuance that discovery was incomplete
and that she needed more time to gather the financial resources to retain counsel and
to "develop separate property claims and many other issues she deems (critical) [sic]
to the proper valuation of the community and separate estates."  She also asserted
that, due to her lack of knowledge and understanding of family law, she would be
unable to perform all of the requirements of the scheduling order without counsel.  	Appellant's motion for continuance did not comply with rules 251 or 252.  The
motion was not supported by affidavit.  It did not state the financial or other matters
she wanted produced, the separate property claims she was making, or what "other
issues" she deemed critical to the valuation of any property.  In addition, she did not
state what efforts she had made to discover the necessary information or to retain an
attorney since November 18, 2005, the date on which her previous attorney withdrew. 
We hold that the trial court did not abuse its discretion by denying appellant's motion
for continuance.  We overrule appellant's first issue.   
3.  Right to Jury Trial

	In her second issue, appellant contends that the trial court erroneously denied
her a jury trial, although she had timely requested a jury trial and had paid the jury
fee.  Appellant argues that, although her jury demand and fee payment made on
September 7, 2005 was not timely for the September 19 trial setting, it became timely
when the trial was reset for December 19.  See Halsell v. Dehoyos, 810 S.W.2d 371,
371 (Tex. 1991) (concluding that untimely filed jury request became timely when trial
was reset to date more than 30 days after jury request was filed).  
	Appellee responds that, not only was appellant's request for a jury trial
untimely, but it was not a proper, written request as required by rule 216 of the Texas
Rules of Civil Procedure.  See Tex. R. Civ. P. 216.  Appellant's jury-trial request was
handwritten on an 8 1/2 by 11 inch sheet of paper.  It was entitled "Jury Trial
Demand" and contained the trial court cause number and the names of appellant and
appellee.  Also written on the paper was "In the best interest of" the two children of
the marriage.  This paper had the District Clerk's file stamp dated September 7, 2005. 
Appellee argues that this paper is insufficient to satisfy the requirement of rule 216,
citing ForScan Corp. v. Dresser Industries, Inc., 789 S.W.2d 389 (Tex.
App.--Houston [14th Dist.] 1990, writ denied).  In ForScan, the appellant's trial
attorney mailed the jury fee to the district clerk with a cover letter stating the "our
firm check in the amount of $10.00 which represents the jury fee for the above-referenced cause" was enclosed.  Id. at 392.  The court of appeals held that the cover
letter was not a sufficient jury trial request "because nowhere does it request, apply
for or demand a jury."  Id.  Thus, it was neither the brevity nor the informality of the
letter that rendered it insufficient.  Rather, it was the lack of any actual request.  
	In the present case, appellant's filing, although very brief and quite informal,
was very clearly a demand for a jury trial.  We conclude that it was sufficient as a jury
request.  
	Appellee also argues that the trial began on September 19, the trial court was
in recess until December 19, and was again in recess until March 27.  Thus, appellee
argues, the jury request was untimely and was never revived as a timely request.  	At the beginning of the hearing on September 19, the trial court stated, "This
is [the] trial date set by the Court."  The court then noted those present and stated that
appellant was not present.  After a discussion regarding the possibility that appellant
was in a psychiatric hospital, the amicus attorney stated, "I would like, if we could
recess the trial, and if you would entertain an emergency motion with evidence
presented regarding the children [because appellant was in a psychiatric hospital]." 
After more discussion regarding appellant's hospitalization, the court stated, "I'm
going to declare this case in trial and I will hear only today the emergency request by
[the amicus attorney]."  The court also admitted petitioner's exhibits 1 through 60.
	On December 19, the trial court announced the case and said, "This is a
continuation of a trial which commenced on September 19, 2005."  Thus, the trial
court made it clear that the trial began on September 19, and appellant's jury trial
request was untimely.  We overrule appellant's second issue.
4.  Division of the Community Property

	In her third issue, appellant complains that the trial court "awarded virtually all
the community property" to appellee although appellant had not worked outside the
home during their 17-year marriage and she was still unemployed.  
	In its findings of fact and conclusions of law, the trial court listed the
community assets and liabilities and their values.  In its division of the assets and
liabilities, the trial court awarded appellee the house, a 1997 Ford truck, and various
accounts for a total of approximately $238,000 in assets and 100% of the liabilities,
which totaled $57,633 and included the balance owed on appellant's 2000 Tahoe and
the amicus attorney's fees.  The trial court awarded appellant an investment account
valued at $23,674, an annuity valued at $78,734, and the 2000 Tahoe valued at
$10,411 for a total of $112,819.  Thus, appellee was awarded approximately 61.5%,
and appellant was awarded approximately 38.5% of the community estate.  Appellant
was not ordered to pay child support or to provide medical insurance for the children. 
	"In a decree of divorce or annulment, the court shall order a division of the
estate of the parties in a manner that the court deems just and right, having due regard
for the rights of each party and any children of the marriage."  Tex. Fam. Code Ann.
§ 7.001 (Vernon 2006).  The trial court may make an unequal division of the marital
property if there is a reasonable basis for doing so.  Massey v. Massey, 807 S.W.2d
391, 398 (Tex. App.--Houston [1st Dist.] 1991), writ denied, 867 S.W.2d 766 (Tex.
1993).  We review the trial court's property division for abuse of discretion. 
Raymond v. Raymond, 190 S.W.3d 77, 82 (Tex. App.--Houston [1st Dist.] 2005, no
pet.).  
	In its findings of fact and conclusions of law, the trial court recited 14 factors
that it took into consideration in determining the just and right division of the marital
property, including the following:
		 disparity of earning power of the spouses;
		 health of the spouses;
		 the spouse to whom conservatorship of the children was granted;
		 needs of the children;
		 education and future employability of the spouses;
		 community indebtedness and liabilities;
		 tax consequences of the division of property;
		 nature of the property involved;
		 credit for temporary support paid by one of the spouses; and
		 attorney's fees and amicus attorney fees paid and to be paid. 

Because appellee would have the sole responsibility for the children, and appellant
would not be required to provide child support or health insurance, we cannot say that
the trial court abused its discretion by its division of the marital property.  We
overrule appellant's third issue.  
5.  The Injunction

	In her fourth issue, appellant contends that the trial court erred by entering a
permanent injunction barring her from any physical access to her children.  She
argues that the injunction was not in the best interests of the children and went
beyond any relief requested by appellee, who in his testimony asked that appellant be
allowed supervised visitation.  We review the trial court's order regarding custody,
control, possession, and visitation for abuse of discretion.  Turner v. Turner, 47
S.W.3d 761, 763 (Tex. App.--Houston [1st Dist.] 2001, no pet.).  
	Two psychologists testified regarding appellant's psychological state.  Her
treating psychologist testified that appellant's condition was deteriorating and that she
refused to get further help.  He knew of one instance in which she took her son's
ADD medication, but she would not go to a psychiatrist, who could prescribe
medication that would be appropriate for her.  
	Appellee testified that, in fact, appellant regularly took their son's medication,
thereby depriving their son of his prescribed treatment.  Appellee also described
appellant's erratic behavior on several occasions, using profanity and creating scenes
in public to the embarrassment of the children.  There was testimony that some
parents did not want appellant's son on their boys' baseball team because appellant
was so disruptive at games.  
	Throughout the trial, appellant was argumentative with both the witnesses and
the court.  She made frequent references to the plots against her, to money stolen from
her, and to assistant judges who were helping appellant take her separate property. 
She accused appellant of owning the oil industry, being responsible for Enron, and
spending millions and millions of dollars "paying off people."  
	Considering appellant's erratic and uncontrolled behavior in the presence of
her children and others and her unwillingness to get the help she needs, we cannot
say, based on the record before us, that the trial court abused its discretion by entering
an injunction barring appellant's access to the children at the current time.  We
overrule appellant's fourth issue.  
CONCLUSION

	We affirm the trial court's final decree.  
 

						Sam Nuchia
						Justice

Panel consists of Justices Nuchia, Hanks, and Bland.

