

Opinion issued December 9, 2010

In The
Court of
Appeals
For The
First District
of Texas
————————————
NO. 01-10-00641-CV
———————————
in re Kathleen Elizabeth Reiter, Relator

 

 
Original Proceeding on Petition for Writ of Mandamus

 

 
O P I N I O N
By petition for writ of mandamus, relator Kathleen Elizabeth
Reiter challenges the district court’s denial of her request for a jury trial
in a suit affecting the parent-child relationship.*  We agree that Reiter is entitled
to a jury trial of her request to be named sole managing conservator, and we
conditionally grant the writ.
Background
The relevant facts are undisputed.  Reiter filed a suit affecting the
parent-child relationship relating to her daughter.  Real party in interest Charles Edwin Moreland
is the child’s father.  Reiter
specifically pleaded a request to be appointed sole managing conservator of the
child and for Moreland to be appointed possessory conservator.  She requested a jury trial and paid the jury
fee.
During a pre-trial conference, Moreland stipulated that
Reiter would have “primary custody” over the child and the right to designate
the child’s primary residence.  He did
not consent to be appointed possessory conservator or for Reiter to be
appointed sole managing conservator.  The
district court concluded that Moreland’s stipulation resolved any issues on
conservatorship that properly could be submitted to a jury and removed the case
from the jury docket.  Reiter then filed
a petition for writ of mandamus complaining that she has been denied her right
to a jury trial on her request to be appointed her child’s sole managing
conservator.
Analysis
I.                 
Standard of review
Mandamus is an extraordinary remedy that is available only
when a trial court clearly abuses its discretion and there is no adequate
remedy by appeal.  In re McAllen Med. Ctr., Inc., 275 S.W.3d 458, 462 (Tex.
2008).  A trial court has no discretion
in determining what the law is or applying the law to the facts.  In re
Prudential Ins. Co., 148 S.W.3d 124, 135 (Tex. 2004).  A trial court abuses its discretion when it
fails to apply the law correctly.  In re Tex. Dep’t of Family & Protective
Servs., 210 S.W.3d 609, 612 (Tex. 2006).
II.              
Right to jury trial
We first must determine whether the district court clearly
abused its discretion by denying a jury trial. 
In three issues, Reiter contends that section 105.002 of the Family
Code allows a party to demand a jury trial for the appointment of conservators.  She further contends that Moreland’s
stipulation to grant her “primary custody” and allow her to determine the
child’s primary residence did not eliminate the need for a jury trial.
The Texas
Constitution guarantees that the right to a trial by jury “shall remain
inviolate.”  Tex. Const. art. I, § 15; see
also Tex. Const. art. V, §
10.  The right to a jury trial has a widely
acknowledged “sacred place in English and American history.”  White v.
White, 108 Tex. 570, 196 S.W. 508, 512 (1917); Monroe v. Alts. in Motion, 234 S.W.3d 56, 69 (Tex. App.—Houston [1st
Dist.] 2007, no pet.).  The Texas
Constitution also authorizes the Legislature to “pass such laws as may be
needed to regulate” the right to a jury trial, and “to maintain its purity and
efficiency.”  Tex. Const. art. I, § 15. 

Family Code section 105.002 governs jury trials in suits
affecting the parent-child relationship. 
It provides that a party may demand a jury trial except in two
circumstances.  Tex. Fam. Code Ann. § 105.002 (Vernon 2008).  Neither of the two statutory exceptions, a
suit in which adoption is sought and a suit to adjudicate parentage under
Chapter 160, applies to this case.  Id. § 105.002(b); Monroe, 234 S.W.3d at 69.  The statute further specifically provides
that a party is entitled to a verdict by the jury and the court may not
contravene a jury verdict on the issues of appointment of a sole managing
conservator, joint managing conservators, or a possessory conservator.  Tex.
Fam. Code Ann. § 105.002(c)(1)(A)-(C); see In re J.A.J., 243 S.W.3d 611, 617 n.5 (Tex. 2007); In re D.A., 307 S.W.3d 556, 561 (Tex.
App.—Dallas 2010, no pet.).  Among other
things, the court is prohibited from submitting to the jury questions on the
issues of any right or duty of a conservator, other than the determination of
which joint managing conservator has the exclusive right to designate the
primary residence of the child.  Tex. Fam. Code Ann. § 105.002(c)(2)(C).
The district court ruled, and Moreland argues in this
original proceeding, that once Moreland stipulated that Reiter would have
primary custody, the only issues remaining in dispute between the parents
related to the rights and duties of each as a conservator, which are not to be
submitted to a jury.  Id. 
This contention requires us to consider the implications of Reiter’s
request to be appointed sole managing conservator.  The Family Code provides that “a parent shall
be appointed sole managing conservator or both parents shall be appointed as
joint managing conservators of the child.” 
Id. § 153.131(a) (Vernon 2008).  There is a rebuttable presumption in favor of
joint managing conservatorship.  See id. § 151.131(b) (Vernon 2008);
see also Phillips v. Beaber, 995
S.W.2d 655, 659 (Tex. 1999).  In a joint
managing conservatorship, the joint managing conservators share the rights and
duties of a parent under the terms and conditions specified by the district
court.  See Tex. Fam. Code. Ann.
§§ 101.016, 153.071 (Vernon 2008). 
A parent appointed sole managing conservator of a child, however, has many
rights that were not the subject of Moreland’s stipulation.  A sole managing conservator has the following
exclusive rights, unless limited by court order:
1.    
the right to
designate the primary residence of the child;
 
2.    
the right to
consent to medical, dental, and surgical treatment involving invasive
procedures;
 
3.    
the right to
consent to psychiatric and psychological treatment; 
 
4.    
the right to
receive and give receipt for periodic payments for the support of the child and
to hold or disburse these funds for the benefit of the child;
 
5.    
the right to
represent the child in legal action and to make other decisions of substantial
legal significance concerning the child;
 
6.    
the right to
consent to marriage and to enlistment in the armed forces of the United States;
 
7.    
the right to make
decisions concerning the child’s education;
 
8.    
the right to
services and earnings of the child; and
 
9.    
except when a
guardian of the child’s estate or a guardian or attorney ad litem has been
appointed for the child, the right to act as an agent of the child in relation
to the child’s estate if the child’s action is required by a state, the United States,
or a foreign government.
 
Id. § 153.132 (Vernon 2008).  In contrast, a possessory conservator has
limited rights and duties.  A possessory
conservator is granted possession of and access to the child under terms and
conditions specified by the district court. 
See id. §§ 153.006, 153.191-.192
(Vernon 2008).  Accordingly, Reiter’s
pleading requesting appointment as sole managing conservator carries with it
significant substantive meaning beyond Moreland’s stipulation that she may have
the right to designate the child’s primary residence and “primary custody.”  
The district court’s interpretation of chapter 105 so as not
to require a jury trial in this case is contrary to the plain language of the
statute, which specifically empowers a party to “demand a jury trial” and
thereby be “entitled to a verdict by the jury . . . on the issues of . . . the
appointment of a sole managing conservator.”
 Id. § 105.002(a), (c)(1)(A); see In re Samford, 249 S.W.3d 761, 763
(Tex. App.—Texarkana 2008, no pet.).  As
with all questions of statutory interpretation, our objective is to determine
and give effect to the Legislature’s intent, looking to the statute’s plain
language and avoiding any construction that would render a provision
meaningless.  See, e.g., Columbia Med. Ctr.
of Las Colinas, Inc. v. Hogue, 271 S.W.3d 238, 256 (Tex. 2008); Lenz v. Lenz, 79 S.W.3d 10, 19 (Tex.
2002).  The purpose of enacting section 105.002
was to distinguish binding jury findings from advisory ones, see Lenz, 79 S.W.3d at 20 (citing Act of
May 8, 1997, 75th Leg., R.S., ch. 180, § 1, 1997 Tex. Gen. Laws 1033, 1034),
and in doing so and through subsequent amendments the Legislature specifically
included appointment of a sole managing conservator on the list of issues for
which a jury’s verdict is binding.  See id.; see also Act of May 27, 2003, 78th Leg., R.S., ch. 1036, § 2, 2003
Tex. Gen. Laws 2987, 2987 (amending section 105.002(c) to specify party is
entitled to verdict by jury on issue of appointment of sole managing
conservator and adding language that “the court may not contravene a jury verdict”
on that issue).
This reading of the statute is not at all diminished by the
fact that the statute also prohibits the court from submitting to the jury a
question on the issue of a right or duty of a conservator other than the
determination of which joint managing conservator has the exclusive right to
designate the primary residence of the child. 
See Tex. Fam. Code Ann. § 105.002(c)(2)(C).  The designation of a sole managing
conservator cannot be regarded merely as a descriptive title applied after a
court has allocated rights or duties to conservators.  Instead, the Family Code establishes a right
to a jury trial on the appointment of a sole managing conservator, joint
managing conservators, or a possessory conservator, and it prohibits the district
court from contravening the jury’s verdict in that regard.  Id.
§ 105.002(c)(1)(A)-(C). 
If a jury determines that a parent shall serve as sole managing
conservator, the Family Code assigns rights and duties to the sole managing
conservator, subject to limitation by court order.  Id.
§§ 153.071-.076, 153.132 (Vernon 2008 &
Supp. 2010).  The provision allowing
modification of the rights and duties of a sole managing conservator by court
order does not eliminate the right to a jury trial on the foundational
issue.  Before the district court may
determine whether to modify the legislatively determined rights and duties set
forth in section 153.132, the jury must first decide whether to appoint a
parent as sole managing conservator. 
Section 105.002(c)(2)(C) prohibits a district court from
delegating to a jury the task of modifying the statutory default allocation of
the rights and duties of conservators. 
To interpret that provision to deprive a party of its right to a jury
determination of the appointment of conservators, including the appointment of
a sole managing conservator, would render section 105.002(c)(1)
meaningless.  Cf. Lenz, 79 S.W.3d at 19-20 (rejecting argument based on section 105.002(c)(2)(C)
that jury’s finding that mother should have exclusive right to designate
primary residence of children was advisory, relying on plain language of
section 105.002(c)(1)(D)).  That we
decline to do.  Instead, we conclude that
Reiter is entitled to a jury trial on her request to be appointed sole managing
conservator, and that the district court abused its discretion in ruling
otherwise.
III.          
Adequacy of appeal
Denial of a jury trial, when a right to one is clearly shown,
can be addressed both by appeal and mandamus. 
In re Prudential, 148 S.W.3d
at 139; In re Samford, 249 S.W.3d at 763.  In determining whether the error in this case
can be adequately addressed on appeal, we note that the concept of adequacy is neither
fixed nor rigid.  See In re Prudential, 148 S.W.3d at 136.  Our analysis is guided by a “careful balance
of jurisprudential considerations that determine when appellate courts will use
original mandamus proceedings to review the actions of lower courts.”  Id.
at 136.
In the sensitive context of child-custody proceedings, courts
have regularly granted mandamus relief.  See, e.g., Powell v. Stover, 165 S.W.3d 322, 323 (Tex. 2005); In re Forlenza, 140 S.W.3d 373, 379
(Tex. 2004); In re Lau, 89 S.W.3d
757, 759-60 (Tex. App.—Houston [1st Dist.] 2002, orig.
proceeding).  Lawsuits involving
child-custody determinations touch on parents’ constitutional interests and important
issues affecting children’s welfare.  See In re M.S., 115 S.W.3d 534, 547
(Tex. 2003).  Thus, “[j]ustice demands a
speedy resolution of child custody . . . issues.”  Proffer
v. Yates, 734 S.W.2d 671, 673 (Tex. 1987) (granting mandamus relief from
trial court’s failure to transfer custody dispute to mandatory venue).
Here, the district court’s error in denying Reiter’s request
for a jury trial could be remedied on appeal, following a bench trial and final
judgment.  See Halsell v. Dehoyos, 810 S.W.2d 371, 372 (Tex. 1991) (reversing
trial court judgment for refusal to grant jury trial and remanding for new
trial).  But we conclude that appeal from
a bench trial would not be adequate under the circumstances of this case.  In this situation, both parties would be
required to endure a trial and its attendant expenses for naught.  See
also In re McAllen Med. Ctr., 275 S.W.3d at 466.  More importantly, the child affected by the
underlying case should not suffer the delay of a second trial before parental rights
and obligations can be established.  See Proffer, 734 S.W.2d at 673.
Conclusion
          We
hold that Reiter is entitled to the relief requested in her petition for writ
of mandamus and direct the district court to proceed in a manner consistent
with this opinion.  We are confident the district
court will afford Reiter the jury trial to which she is entitled, and our writ
will issue only if the district court does not.
 
                                                                   Michael
Massengale
                                                                   Justice

 
Panel consists of Chief Justice Radack and Justices
Massengale and Brown.




*           The underlying case is In the Interest of M.T.M., No.
2009-73754 in the 246th District Court of Harris County, Texas, the Honorable
Jim York presiding.


