                                   NO. 07-04-0414-CV

                             IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                      AT AMARILLO

                                        PANEL A

                                  NOVEMBER 28, 2005

                          ______________________________


                   IN THE MATTER OF THE MARRIAGE OF
                JACKIE LEE STEIN AND CRAIG HARLAN STEIN
                         AND IN THE INTEREST OF
            BROOKE LEE STEIN AND TYLER WAYNE STEIN, CHILDREN

                        _________________________________

            FROM THE 31ST DISTRICT COURT OF LIPSCOMB COUNTY;

              NO. 02-11-3757; HONORABLE STEVEN EMMERT, JUDGE

                         _______________________________


Before REAVIS and CAMPBELL and HANCOCK, JJ.


                                         OPINION


       Following a hearing on a motion to enter new orders, Jackie L. Stein challenges the

order signed July 12, 2004, appointing Craig H. Stein sole managing conservator of their

children and designating Craig with the exclusive right to establish the primary residence

of the children and ordering her to pay child support. Presenting two issues, Jackie

contends the trial court erred when (1) it rendered its order on the appointment of sole and
possessory conservators without considering any evidence since the hearing on February

28, 2003, and (2) it rendered its order on the appointment of sole and possessory

conservators after she had filed her request for a jury trial. We reverse and remand in part

and affirm in part.


       By opinion and judgment dated January 30, 2004, we reversed and remanded the

decree of divorce following a non-jury trial only to the extent that it affected conservatorship

of the children. Jackie filed a request for jury trial on April 8, 2004.1 Craig filed a motion

to render new judgment and brief in support thereof on April 27, 2004, which was followed

by Jackie’s response on May 6, 2004. At a non-evidentiary hearing, the trial court heard

argument from both parties on Craig’s motion to render judgment. Following a recess,

after stating the court had erred in its interpretation of the phrase “history of family violence”

upon the first trial, and upon consideration of all the evidence presented in the original trial,

it announced the prior order would be modified. Accordingly, the court signed an order

consistent with its announcement that Craig be named sole managing conservator and

Jackie be named possessory conservator with rights of access pursuant to a standard

order and also ordered Jackie to pay child support.                Jackie filed a motion for

reconsideration. Before we consider our analysis of Jackie’s issues, we first address the

status of the proceeding upon the partial remand to the trial court.




       1
           See In Re Marriage of Stein, 153 S.W.3d 485 (Tex.App.--Amarillo 2004, no pet.).

                                                2
                                   Status on Remand


       Rule 43.2 of the Texas Rules of Appellate Procedure provides in part that a court

of appeals may:


              affirm the trial court’s judgment in whole or in part; and
              reverse the trial court’s judgment and remand for further proceedings.


See Tex. R. App. P. 43.2(a) & (d). Generally, when an appellate court remands a case for

further proceedings, the effect is to remand the case for a new trial on all the issues of fact

and the case is reopened in its entirety. Gordon v. Gordon, 704 S.W.2d 490, 491

(Tex.App.–Corpus Christi 1986, writ dism’d). Also, when an appellate court remands a

case and limits a subsequent trial to a particular issue, the trial court is restricted to a

determination of that particular issue. Hudson v. Wakefield, 711 S.W.2d 628, 630 (Tex.

1986). See also Hansen v. Academy Corp., 961 S.W.2d 329, 331 (Tex.App.--Houston [1st

Dist.] 1997, no writ). Accordingly, our reversal of the portion of the trial court’s judgment

relating to conservatorship, possession, and child support completely nullified and left it as

if it had never been rendered. Flowers v. Flowers, 589 S.W.2d 746, 748 (Tex.Civ.App.--

Dallas 1979, no writ). Based on our judgment, questions regarding the parent-child

relationship were remanded for new trial. See Tex. R. App. P. 43.2(d). See also Tex.

Fam. Code Ann. § 6.406.




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       Addressing Jackie’s issues in a logical rather than sequential order, we first consider

issue two by which she contends the trial court erred when it rendered its order on the

appointment of sole and possessory conservators after she had filed a request for a jury.

We agree.


       After Jackie filed a request for a jury trial, Craig filed a motion to render new

judgment in accordance with our opinion and mandate. By the motion, he requested the


       Court reconsider its prior ruling and render a modified final decree naming
       Craig Harlan Stein as sole managing conservator of the minor children made
       the basis of this suit. No further testimony is needed or required for the
       reasons set forth in the accompanying brief.


       By his brief, he argued (1) the remand did not require a new trial and (2) application

of the remand instructions allowed for rendition of new judgment contending, among other

things, that the mandate did not direct “that a new trial on the merits is required.”


       Responding to Craig’s motion, Jackie:


       •      alleged she had paid a jury fee and requested determination of the
              issues by a jury;

       •      alleged the evidence presented at the first trial was not current, in that
              it was presented approximately 14 months prior to Craig’s motion;

       •      alleged there had been significant developments affecting the children
              since the prior evidence was presented; and

       •      requested an evidentiary trial.




                                                4
       In opposition to Jackie’s response and request for a jury trial, Craig focused his

argument on the public policy of avoiding additional litigation, the need for stability of the

children, and judicial economy. However, he did not challenge Jackie’s right to a jury

determination of the issues.


       The trial court called Craig’s motion to render judgment for hearing on June 3, 2004.

Although the reporter’s record indicates “Trial on Merits,” the record consists of arguments

by counsel for both parties. After taking a recess, the trial judge returned to the bench and

without giving counsel an opportunity to present additional matters, announced that

considering the evidence presented at the original trial, and the opinion of the Court of

Appeals, his interpretation of the phrase “history of family violence” was in error. Further,

he announced it was in the best interest of the children that Craig be named sole managing

conservator of the minor children.


       On June 23, 2004, Jackie filed a motion to reconsider arguing, among other things,

she had paid a jury fee and requested an evidentiary trial. However, the motion was

followed by the trial court’s order appointing Craig sole managing conservator and Jackie

possessory conservator.


       Section 6.703 of the Texas Family Code provides that either parent is entitled to a

trial by jury. Following our opinion, Jackie promptly filed a jury deposit. Jackie’s failure to

request a jury trial upon the first trial does not bar her right to a jury trial on remand. See

Harding v. Harding, 485 S.W.2d 297, 299 (Tex.Civ.App.--San Antonio 1972, no writ).

                                              5
       Craig does not question a parent’s right to a jury trial in a suit affecting the parent-

child relationship. Instead, he contends Jackie’s complaint was not preserved for review.

Pleadings frame the issues for determination. Murray v. O & A Express, Inc., 630 S.W.2d

633, 636 (Tex. 1982). Although issues not raised in pleadings or at trial may not be raised

for the first time on appeal, see State of Cal. Dept. of Mental Hygiene v. Bank of Southwest

Nat. Ass’n, 163 Tex. 314, 354 S.W.2d 576, 579 (1962), Jackie raised her request for a jury

trial by written response. Although Jackie’s response was not designated as an answer

or other pleading, considering its substance, allegations and evident purpose, see Hoover

v. Gregory, 835 S.W.2d 668, 671 (Tex.App.--Dallas 1992, writ denied), for these purposes,

we hold that her request for jury trial was presented to the trial court.


       Craig further contends the trial court did not rule on Jackie’s request as required by

Rule 33.1(a)(2). However, Craig overlooks the provision of 33.1(a)(2)(A) which provides

that a ruling may be either expressed or implicit. As above noted, the request for jury trial

was presented in Jackie’s response on file at the time of the hearing. Accordingly, the

court’s announcement at the close of the hearing and rendition of the order constituted an

implicit adverse ruling of Jackie’s request for a jury trial. See In Re Z.L.T., 124 S.W.3d

163, 165 (Tex. 2003) (holding that by proceeding to trial without issuing the requested

bench warrant, it was clear the trial court implicitly denied the request).


       We have not overlooked Craig’s argument that Jackie’s complaint was not

preserved because she did not file a motion for new trial. However, a motion for new trial


                                              6
is not a prerequisite to a complaint on appeal except in the instances provided in Rule

324(b) of the Texas Rules of Civil Procedure. Issue two is sustained. Our disposition of

issue two pretermits consideration of issue one.


       Accordingly, that portion of the trial court’s judgment signed July 12, 2004, relating

to conservatorship, possession, and child support is reversed and the cause is remanded

to the trial court for a new trial and further proceedings. In all other aspects, the judgment

of the trial court is affirmed.


                                           Don H. Reavis
                                             Justice




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