Opinion issued May 17,=20 2007
For=20
The
JAMIE R. =
O'CONNOR,=20
Appellant DANIEL =
K. O'CONNOR,=20
Appellee
On =
Appeal from the=20
310th District Court Harris =
County,=20
Texas Trial =
Court Cause=20
No. 2004-52791
O P I N =
I O=20
N Appellant, Jamie R. O'Connor, =
appeals the=20
final decree of divorce rendered by the trial court. She presents =
four=20
issues complaining that the trial court erred by (1) denying her =
motion=20
for continuance, (2) denying her request for a jury trial, (3) =
dividing=20
the community property unjustly, and (4) entering an injunction =
barring=20
her from having any periods of possession or any access to the =
minor=20
children. We affirm.
Appellant and appellee, Daniel =
K.=20
O'Connor, were married in 1989. On September 27, 2004, appellee =
filed for=20
divorce. The trial court signed temporary orders that gave =
appellant=20
possession of the family home and the right to determine the =
residence of=20
the two minor children and required appellee to pay child support =
to=20
appellant. The final decree of divorce was signed on April 12, =
2006.=20
The record indicates that, =
during the=20
18.5 months in which this case was pending, appellant had four =
attorneys.=20
Each of those attorneys represented appellant for a period ranging =
from=20
one to four months, with a gap of one to one and one-half months =
between=20
attorneys, during which time appellant appeared pro se. =
Appellant's fourth=20
attorney was court-appointed and was to be paid from funds =
deposited in=20
the registry of the court by appellee. That attorney filed a =
motion to=20
withdraw as counsel, which was granted on November 18, 2005. From =
that=20
date through the filing of the notice of appeal, appellant again =
appeared=20
pro se. The first trial setting was May =
9, 2005.=20
The trial court granted appellant's motion for continuance for =
that date=20
and for the subsequent settings for July 18, 2005 and August 15, =
2005.=20
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=20
for a continuance. On August 3, 2005, the trial =
court=20
appointed an amicus attorney to assist the court in protecting the =
children's best interests. See Tex. Fam. Code Ann.=20
=A7=A7 107.001, 107.003, 107.005, 107.021, 107.023 (Vernon =
Supp. 2006).=20
Thereafter, the amicus attorney participated in all trial =
settings.=20
The case was called to trial on =
September=20
19, 2005. Appellee appeared with his counsel, and the amicus =
attorney=20
appeared, but appellant did not. The trial court received a fax on =
Cypress=20
Creek Hospital letterhead stating that appellant had been under =
the care=20
of a physician since September 15, 2005. The trial court clarified =
that=20
Cypress Creek Hospital is a psychiatric hospital. In light of that =
fact,=20
the amicus attorney requested the court to recess the trial and to =
entertain an emergency motion regarding the children. Although the =
trial=20
court and the parties were unable to confirm that appellant had =
been=20
admitted to the hospital, the trial court granted the request to =
proceed=20
on the emergency motion. Appellee's counsel had =
subpoenaed two=20
witnesses: Dr. Richard Krummel, appellant's former treating =
psychologist,=20
and Dr. Lawrence Abrams, the court-appointed psychologist. Krummel =
testified that he had treated appellant from April 2003 to August =
2005.=20
Initially, he saw her weekly, but for the last year, he saw her =
twice=20
weekly due to her increased stress level, her emotional =
instability, and=20
her deterioration into delusional, paranoid thought. Early in her =
therapy,=20
she showed signs of moderate to severe depression. Later, she =
began to=20
exhibit characteristics of bipolar disorder and then delusional =
thoughts.=20
She resisted his suggestions that she seek treatment at an =
inpatient=20
facility or get additional help from a psychiatrist. She told him =
once=20
that she had taken her son's medication, which had been prescribed =
for his=20
attention deficit disorder. Krummel testified that he would not =
recommend=20
that a person with appellant's symptoms have the primary residence =
for=20
eight- and ten-year-old children. Abrams testified that he had =
met with=20
appellee four times, the two children twice, and appellant twice. =
He=20
testified that appellee was capable of taking care of the children =
and=20
that the children were friendly and comfortable with him. He =
further=20
testified that he was not able to complete the interview material =
with=20
appellant because she talked about a conspiracy against her and =
other=20
problems. He said that she apologized for having suspected that he =
was=20
involved in the conspiracy. He referred to her "incessant =
dialogue" and=20
"repetitive material" and said that she made references to =
evidence that=20
"went on and on without anything being pinned down." He expressed =
concern=20
about her paranoia and fixed delusions, such as believing people =
were=20
buying her property and stealing her life, which "can be repeated =
for=20
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."=20
Appellee testified that, since =
December,=20
appellant had asked him to take the children for increasing =
amounts of=20
time. He said that she explained that she needed to concentrate to =
prepare=20
for court and to research. He testified that he had the children =
for all=20
but six days of June and all of July. He also testified that she=20
threatened to have him put in jail, said that the FBI was going to =
arrest=20
him, and accused him of conspiring with his attorney to defraud =
her.=20
Appellee testified that, when the children were living with =
appellant, he=20
had to keep his son's medication because, otherwise, appellant =
would take=20
it rather than give it to their son. Appellee said that he would =
go to=20
appellant's home each morning to give his son the medication. =
At the end of the hearing, the =
trial=20
court awarded appellee temporary managing conservatorship with the =
right=20
to determine residency of the children and the right to move back =
into the=20
family home. The court also abated child support. The court reconvened for trial=20
proceedings on December 19, 2005. After testimony from a witness =
regarding=20
appellee's involvement in the children's activities and during =
testimony=20
from appellee, appellant, who was appearing pro se, objected to =
appellee's=20
testimony and to the trial, saying that the trial court refused to =
consider her motion for disqualification of the court, which was =
based on=20
the court's close relationship with a party involved in the case, =
the=20
associate judge, whom appellant believed to be a silent partner in =
a land=20
and oil deal with appellee and his attorney. The trial court =
stated that,=20
although he believed that both he and his associate judge were not =
recused, he would refer the case to the Administrative Judge for=20
reassignment. The trial court then declined appellant's request to =
rule on=20
pending motions. The case was transferred to Judge Lisa Millard, =
who set=20
trial for February 1, 2006. The case was reset by agreement of the =
parties=20
to March 27, 2006. The trial court denied appellant's motion for=20
continuance, which was filed March 13, and the trial on the merits =
began=20
on March 27. Before the trial began, =
appellant asked=20
the court about the motions she had filed that were to be heard =
that=20
morning. The court said, "And you weren't present this morning, so =
they=20
were denied." There was no further discussion regarding the =
motions.=20
During the trial, Krummel and =
Abrams=20
again testified regarding appellant's mental problems. In =
addition, Tracy=20
Lampson, a friend and neighbor of the O'Connors testified =
regarding=20
positive interaction she had observed between appellee and his =
children.=20
She also testified about appellant's inappropriate and erratic =
behavior,=20
such as arguing with appellee in front of the children, telling =
the=20
children that their father was going to federal prison and that =
she was=20
going to have Mr. Lampson, the boys' baseball coach, put in jail. =
Lampson=20
testified that the other parents did not want the O'Connor's son =
on the=20
team because appellant was very disruptive at the games. Llampson =
further=20
testified that she stopped allowing her son to go to appellant's =
home=20
because appellant did not supervise the children and once allowed =
them to=20
go to a store several blocks away when they were only nine years =
old. She=20
said that since the children have been living with appellee, she =
allows=20
her son to visit and to spend the night with the O'Connors' son.=20
The trial court rendered a =
decree=20
appointing appellee sole managing conservator and appellant =
possessory=20
conservator. The court found it in the children's best interest =
not to=20
order visitation. Appellee was awarded the residence and all =
furnishings.=20
Each party was awarded the bank account in his or her name. =
Appellee was=20
awarded the 1997 Ford truck and appellant was awarded the 2004 =
Tahoe. Each=20
party was awarded his or her retirement or pension plan, any =
insurance=20
policy in his or her name, and his or her jewelry and personal =
property.=20
Appellee was ordered responsible for all debt listed in the =
inventory. The=20
trial court permanently enjoined appellant from speaking or =
writing any=20
obscene, disparaging, or demeaning remarks to or about appellee in =
the=20
children's presence; from discussing or referring to any issues or =
proceedings related to the present lawsuit in the children's =
presence;=20
from going within 200 yards of appellee's residence; from placing =
more=20
than one telephone call daily to appellee or the children; from =
placing=20
any telephone call to appellee or the children between 8:00 p.m. =
and 8:00=20
a.m.
Because the amicus attorney has =
filed a=20
brief, we first address whether the amicus attorney has a role in =
this=20
Court. In response to questions by this Court, the amicus attorney =
states=20
that the statute does not define whom the amicus attorney =
represents. She=20
reasons that, because she is charged with assisting the court and, =
by=20
statute, is to "participate in the litigation to the same extent =
as an=20
attorney for a party," she would be derelict in her duties if she =
did not=20
file a brief in this Court. She quotes a paper presented at a =
family law=20
course, which states, "When a court-appointed attorney has not =
been=20
discharged by the court, the representation continues through the=20
appellate process." Reginald A. Hirsch, Joseph Indelicato, Jr., =
and Lauren=20
E. Waddell, Who Represents the Child? Not Me, I Am the Amicus=20
Attorney!, 32nd Annual Advanced Family Law Course, August =
14-17,=20
2006, San Antonio, Texas. The statute defines an amicus =
attorney as=20
follows: "Amicus attorney" means an =
attorney=20
appointed by the court in a suit, other than a suit filed by a=20
governmental entity, whose role is to provide legal services =
necessary to=20
assist the court in protecting a child's best interests rather =
than to=20
provide legal services to the child. Tex. Fam. Code Ann. =A7 107.001 =
(Vernon=20
Supp. 2006). Under the Family Code, an amicus attorney and an =
attorney ad=20
litem appointed to represent a child have the same duties. Tex. =
Fam. Code=20
Ann. =A7 107.003 (Vernon Supp. 2006). However, there is one =
important=20
distinction. The attorney ad litem represents the child. The =
amicus=20
attorney is appointed specifically to assist the court. And the =
plain=20
language of the statutory definition of amicus attorney can mean =
only that=20
the amicus attorney assists the court that appointed her. See =
id.=20
To whatever extent the trial court has a role during an appeal of =
the=20
final decree, the amicus attorney may assist that court. But the =
amicus=20
attorney represents neither an appellant nor an appellee and =
therefore has=20
no basis for filing a brief in the appeal. Nothing in the Family =
Code=20
indicates that the amicus attorney should participate in an =
appeal.=20
See Tex. Fam. Code Ann. =A7=A7 107.001-.023 (Vernon =
Supp.=20
2006). Because the amicus attorney is =
"to=20
provide legal services to assist the court," the trial court is, =
in=20
effect, the amicus attorney's client for a limited purpose. But =
the trial=20
court is not a party either to the underlying case or in this =
appeal.=20
Therefore it is as inappropriate for the amicus attorney to file a =
brief=20
as it would be for the trial court to file one. Accordingly, we do =
not=20
consider the amicus attorney's brief.
In her first issue, appellant =
contends=20
that the trial court erred by denying her motion for continuance. =
A motion=20
for continuance may not be granted "except for sufficient cause =
supported=20
by affidavit, or by consent of the parties, or by operation of =
law." Tex.=20
R. Civ. P. 251. When requesting additional time for discovery, the =
movant=20
must aver, by affidavit, that the matters to be discovered are =
material,=20
show the materiality of the discovery, and show that she has used =
due=20
diligence to procure the matters. See Tex. R. Civ. P. =
252;=20
Hatteberg v. Hatteberg, 933 S.W.2d 522, 527 (Tex. =
App.--Houston=20
[1st Dist.] 1994, no writ) (stating that, when requesting =
additional time=20
for discovery, rule 252 must be complied with under oath). Absence =
of=20
counsel alone is not good cause for a continuance. Tex. R. Civ. P. =
253. We=20
review a trial court's denial of a motion for continuance for =
abuse of=20
discretion. Yowell v. Piper Aircraft Corp., 703 S.W.2d =
630, 635=20
(Tex. 1986). Appellant asserted in her =
motion for=20
continuance that discovery was incomplete and that she needed more =
time to=20
gather the financial resources to retain counsel and to "develop =
separate=20
property claims and many other issues she deems (critical) [sic] =
to the=20
proper valuation of the community and separate estates." She also =
asserted=20
that, due to her lack of knowledge and understanding of family =
law, she=20
would be unable to perform all of the requirements of the =
scheduling order=20
without counsel. Appellant's motion for continuance did not comply =
with=20
rules 251 or 252. The motion was not supported by affidavit. It =
did not=20
state the financial or other matters she wanted produced, the =
separate=20
property claims she was making, or what "other issues" she deemed =
critical=20
to the valuation of any property. In addition, she did not state =
what=20
efforts she had made to discover the necessary information or to =
retain an=20
attorney since November 18, 2005, the date on which her previous =
attorney=20
withdrew. We hold that the trial court did not abuse its =
discretion by=20
denying appellant's motion for continuance. We overrule =
appellant's first=20
issue.
In her second issue, appellant =
contends=20
that the trial court erroneously denied her a jury trial, although =
she had=20
timely requested a jury trial and had paid the jury fee. Appellant =
argues=20
that, although her jury demand and fee payment made on September =
7, 2005=20
was not timely for the September 19 trial setting, it became =
timely when=20
the trial was reset for December 19. See Halsell v. =
Dehoyos, 810=20
S.W.2d 371, 371 (Tex. 1991) (concluding that untimely filed jury =
request=20
became timely when trial was reset to date more than 30 days after =
jury=20
request was filed). Appellee responds that, not =
only was=20
appellant's request for a jury trial untimely, but it was not a =
proper,=20
written request as required by rule 216 of the Texas Rules of =
Civil=20
Procedure. See Tex. R. Civ. P. 216. Appellant's =
jury-trial=20
request was handwritten on an 8 1/2 by 11 inch sheet of paper. It =
was=20
entitled "Jury Trial Demand" and contained the trial court cause =
number=20
and the names of appellant and appellee. Also written on the paper =
was "In=20
the best interest of" the two children of the marriage. This paper =
had the=20
District Clerk's file stamp dated September 7, 2005. Appellee =
argues that=20
this paper is insufficient to satisfy the requirement of rule 216, =
citing=20
ForScan Corp. v. Dresser Industries, Inc., 789 S.W.2d 389 =
(Tex.=20
App.--Houston [14th Dist.] 1990, writ denied). In =
ForScan, the=20
appellant's trial attorney mailed the jury fee to the district =
clerk with=20
a cover letter stating the "our firm check in the amount of $10.00 =
which=20
represents the jury fee for the above-referenced cause" was =
enclosed.=20
Id. at 392. The court of appeals held that the cover =
letter was=20
not a sufficient jury trial request "because nowhere does it =
request,=20
apply for or demand a jury." Id. Thus, it was neither the =
brevity=20
nor the informality of the letter that rendered it insufficient. =
Rather,=20
it was the lack of any actual request. In the present case, =
appellant's filing,=20
although very brief and quite informal, was very clearly a demand =
for a=20
jury trial. We conclude that it was sufficient as a jury request.=20
Appellee also argues that the =
trial began=20
on September 19, the trial court was in recess until December 19, =
and was=20
again in recess until March 27. Thus, appellee argues, the jury =
request=20
was untimely and was never revived as a timely request. At the =
beginning=20
of the hearing on September 19, the trial court stated, "This is =
[the]=20
trial date set by the Court." The court then noted those present =
and=20
stated that appellant was not present. After a discussion =
regarding the=20
possibility that appellant was in a psychiatric hospital, the =
amicus=20
attorney stated, "I would like, if we could recess the trial, and =
if you=20
would entertain an emergency motion with evidence presented =
regarding the=20
children [because appellant was in a psychiatric hospital]." After =
more=20
discussion regarding appellant's hospitalization, the court =
stated, "I'm=20
going to declare this case in trial and I will hear only today the =
emergency request by [the amicus attorney]." The court also =
admitted=20
petitioner's exhibits 1 through 60. On December 19, the trial court =
announced=20
the case and said, "This is a continuation of a trial which =
commenced on=20
September 19, 2005." Thus, the trial court made it clear that the =
trial=20
began on September 19, and appellant's jury trial request was =
untimely. We=20
overrule appellant's second issue.
In her third issue, appellant =
complains=20
that the trial court "awarded virtually all the community =
property" to=20
appellee although appellant had not worked outside the home during =
their=20
17-year marriage and she was still unemployed. In its findings of fact and =
conclusions=20
of law, the trial court listed the community assets and =
liabilities and=20
their values. In its division of the assets and liabilities, the =
trial=20
court awarded appellee the house, a 1997 Ford truck, and various =
accounts=20
for a total of approximately $238,000 in assets and 100% of the=20
liabilities, which totaled $57,633 and included the balance owed =
on=20
appellant's 2000 Tahoe and the amicus attorney's fees. The trial =
court=20
awarded appellant an investment account valued at $23,674, an =
annuity=20
valued at $78,734, and the 2000 Tahoe valued at $10,411 for a =
total of=20
$112,819. Thus, appellee was awarded approximately 61.5%, and =
appellant=20
was awarded approximately 38.5% of the community estate. Appellant =
was not=20
ordered to pay child support or to provide medical insurance for =
the=20
children. "In a decree of divorce or =
annulment, the=20
court shall order a division of the estate of the parties in a =
manner that=20
the court deems just and right, having due regard for the rights =
of each=20
party and any children of the marriage." Tex. Fam. Code Ann. =
=A7 7.001=20
(Vernon 2006). The trial court may make an unequal division of the =
marital=20
property if there is a reasonable basis for doing so. Massey =
v.=20
Massey, 807 S.W.2d 391, 398 (Tex. App.--Houston [1st Dist.] =
1991),=20
writ denied, 867 S.W.2d 766 (Tex. 1993). We review the =
trial=20
court's property division for abuse of discretion. Raymond v.=20
Raymond, 190 S.W.3d 77, 82 (Tex. App.--Houston [1st Dist.] =
2005, no=20
pet.). In its findings of fact and =
conclusions=20
of law, the trial court recited 14 factors that it took into =
consideration=20
in determining the just and right division of the marital =
property,=20
including the following: =95 disparity of earning power =
of the=20
spouses; =95 health of the =
spouses; =95 the spouse to whom =
conservatorship of=20
the children was granted; =95 needs of the =
children; =95 education and future =
employability of=20
the spouses; =95 community indebtedness and=20
liabilities; =95 tax consequences of the =
division of=20
property; =95 nature of the property=20
involved; =95 credit for temporary =
support paid by=20
one of the spouses; and =95 attorney's fees and amicus =
attorney=20
fees paid and to be paid. Because appellee would have the =
sole=20
responsibility for the children, and appellant would not be =
required to=20
provide child support or health insurance, we cannot say that the =
trial=20
court abused its discretion by its division of the marital =
property. We=20
overrule appellant's third issue.
In her fourth issue, appellant =
contends=20
that the trial court erred by entering a permanent injunction =
barring her=20
from any physical access to her children. She argues that the =
injunction=20
was not in the best interests of the children and went beyond any =
relief=20
requested by appellee, who in his testimony asked that appellant =
be=20
allowed supervised visitation. We review the trial court's order =
regarding=20
custody, control, possession, and visitation for abuse of =
discretion.=20
Turner v. Turner, 47 S.W.3d 761, 763 (Tex. App.--Houston =
[1st=20
Dist.] 2001, no pet.). Two psychologists testified =
regarding=20
appellant's psychological state. Her treating psychologist =
testified that=20
appellant's condition was deteriorating and that she refused to =
get=20
further help. He knew of one instance in which she took her son's =
ADD=20
medication, but she would not go to a psychiatrist, who could =
prescribe=20
medication that would be appropriate for her. Appellee testified that, in =
fact,=20
appellant regularly took their son's medication, thereby depriving =
their=20
son of his prescribed treatment. Appellee also described =
appellant's=20
erratic behavior on several occasions, using profanity and =
creating scenes=20
in public to the embarrassment of the children. There was =
testimony that=20
some parents did not want appellant's son on their boys' baseball =
team=20
because appellant was so disruptive at games. Throughout the trial, appellant =
was=20
argumentative with both the witnesses and the court. She made =
frequent=20
references to the plots against her, to money stolen from her, and =
to=20
assistant judges who were helping appellant take her separate =
property.=20
She accused appellant of owning the oil industry, being =
responsible for=20
Enron, and spending millions and millions of dollars "paying off =
people."=20
Considering appellant's erratic =
and=20
uncontrolled behavior in the presence of her children and others =
and her=20
unwillingness to get the help she needs, we cannot say, based on =
the=20
record before us, that the trial court abused its discretion by =
entering=20
an injunction barring appellant's access to the children at the =
current=20
time. We overrule appellant's fourth issue.
We affirm the trial court's =
final decree.=20
Sam Nuchia Justice Panel consists of Justices =
Nuchia, Hanks,=20
and Bland.