1. Byres v. Byres, No. 2-99-061-CV, not yet published (CA, Fort Worth). On 10/31/97, H moved out and told W he wanted a divorce. W must have anticipated this as she met with H 2 days later with a written AID which divided the parties' property (drawn by W's atty). After reading the AID and w/o advise of counsel, H signed. 10 days later W filed for divorce. H hired an atty and immediately reputed the AID. Trial held on 10/17/98. The T/C refused to honor or enforce the AID and divided the parties' property. W appealed on the basis that the T/C erred by not approving the agreement as an AID or as a partition agreement. CA affirmed. § 7.006(a) says an AID can be repudiated prior to rendition of divorce unless it "is binding under another rule of law." W says the AID is binding as a contract or a partition. CA replied that its not a partition because a partition contemplates a division of property, not a complete forfeiture (here W got all of H's retirement which I assume was the bulk of the property). Additionlly, Texas will not uphold agreements between spouses unless there is a specific reference to such being a partition or that such a lopsided division is intended. Additionlly this agreement said it was subject to Ct. approval which is not required in a § 4.102 partition agreement. As to the contract argument, nothing in the agreement showed that H & W intended to immediate transfer of property or otherwise intended the AID to be a binding contract. In fact the AID specifically made its validity subject to Ct. approval which negates the "binding nature" of the agreement. Comment - You can't have an enforceable AID prior to rendition unless it's a valid partition - nice try but no cigar.
2. Williams v. Williams, No. 2-99-312-CV, not yet published (CA, Fort Worth). W filed an application for protective order against H (no divorce filed) on 8/17/99. H filed an answer 7 days later. Hearing was set for 8:30 a.m. on 8/26/99. At 9:40 a.m. on the day of the hearing, H filed a jury request and paid the jury fee. T/C denied H's request for a jury and issued a protective order. H appeals. CA said H wasn't entitled to a jury because: (1) H's jury request wasn't timely per rule 216(a) TRCP which requires it to be made not less than 30 days before trial and (2) throughout Title 4, the term "Court" is used to mean that the judge of the Court is the trier of fact thus the Legislature determined that a party is not entitled to a jury in a protective order matter (§ 71.002 defines "Court" to mean the dist. ct., family ct., juvenile ct. or other ct. having similar juris.). Bottom line - no jury on an application for a protective order. Comment - I think the Ct.'s logic on (1) is weak since a hearing on a protective order can't be less than 20 days (§ 84.002) after filing so a Res. can never comply with TRCP 216(a) but this alone shows the Leg. never intended that a jury should be used in these matters. All through the Fam. Code the term "Court" is used which can mean a jury but the definition in § 84.002 probably differentiates protective orders from the remainder of the Code.
3. In the Interest of K.R., No. 14-98-00118-CV, not yet published (CA, Houston-14th). W had a boy from a previous relationship. She then married H and later a girl was born. H hit the boy and killed him which resulted in H being convicted of reckless injury to a child. While serving his 10 year prison sentence, CPS filed suit to terminate H's parental rights with his daughter. At the jury trial, over the objections/reservations of the attys for CPA and H and the ad litem, the T/C kept H in handcuffs w/o stating any reason other than H was a convicted felon. The T/C instructed the jury that they weren=t to infer anything from H being handcuffed other than he had been convicted of a crime and was in jail. Jury terminated H's parental rights. H appeals claiming that he was denied due process by having to appear before the jury in handcuffs. CA, en banc, in a case of 1st impression, held that unless the ct's record affirmatively shows "sufficient reason" to keep H in handcuffs, in a termination proceeding (remember all the const. rights in a termination case), H's const. rights to due process were violated thus a reversal is mandated. Comment - This is not a particularly significant case since this doesn't happen often but its instructive to trial judges - if all the lawyers think you may be committing an error, take a 2nd look at your ruling.
4. In the Interest of V.L.K., 43 Tex.Sup.Ct.J. 37 (CA, Ft. Worth). W signed an agreed order whereby her mother became the M/C of W's child with W as P/C. Later X (who had the physical possession of the child for more than 6 mos.) filed a motion to modify so X would be a JMC with mom. W then filed a motion to modify requesting that she be the child's sole M/C. Jury trial. The T/C ruled that it did not have to instruct the jury that it was presumed that W, as the child's parent, should be appointed the child's M/C unless doing so would significantly impair the child's physical health or emotional development. The jury found for X & W appealed. CA reversed (993/887) holding that the parent presumption rule in § 153.151 applies (and the jury should be instructed as to such presumption) in any original custody proceeding; in any subsequent modification proceeding involving a non-parent where the non-parent was not a party to the earlier suit; and probably in any subsequent modification proceeding where the non-parent was a party. Sup. Ct. reversed and affirmed the T/C's judgment. § 153.131's parent presumption only applies to original proceedings, not modification proceedings, even those modifications where there are new parties who were not parties to the original proceeding. If the Leg. had intended to have a parent presumption in Chapter 156 proceedings (modifications), they would have put such a presumption in Chapter 156. Interestingly the T/C instructed the jury that there was no parent presumption in a modification suit which W objected to as a comment on the weight of the evidence; however, she didn't brief this error in the CA or before the Sup. Ct. so it was waived. The Supremes said they weren't going to decide this point but a clear reading of the Supreme's words indicates that the T/C erred by giving this instruction as it is an erroneous comment on the weight of the evidence. Comment - So what do you instruct the jury about the parent presumption in a modification suit? Simple. You don=t give any instructions on parental preferences - neither negative or affirmative - just keep silent.
