In re Harrison
557 S.W.3d 99
Tex. App.2018Background
- Clifford and Connie Harrison (both lawyers) separated in 2006; protracted divorce and custody litigation began then and continued through multiple trials, counsel changes, and appeals.
- After remand from this court (Harrison I), the parties signed a January 2014 mediated settlement agreement (MSA) that was incorporated into an April 2014 interim order providing joint managing conservatorship and specific school/residence provisions.
- Connie repeatedly violated court orders (withholding children, unapproved school enrollments, disruptive conduct at their school), leading to contempt findings, fines, suspended jail sentence with conditions, and temporary removal as joint managing conservator.
- Less than six weeks before the January 20, 2015 trial, Connie’s then-counsel, Sara Razavi Zand, moved to withdraw citing an ethical conflict tied to Connie’s conduct; the trial court allowed withdrawal but denied or did not grant a continuance.
- Trial proceeded as a bench trial (Cliff had timely demanded and paid for a jury but withdrew the demand on the morning of trial after Connie failed to appear timely). The court appointed Cliff sole managing conservator, limited Connie to supervised, twice-monthly four-hour visits, awarded the marital home to Cliff, and divided other assets; Connie appealed.
- The court of appeals affirmed: it concluded the trial court did not abuse discretion in permitting counsel withdrawal, denying a continuance, proceeding with a bench trial, imposing supervised visitation, or dividing the marital estate given the record and Connie’s conduct.
Issues
| Issue | Plaintiff's Argument (Connie) | Defendant's Argument (Cliff) | Held |
|---|---|---|---|
| Withdrawal of counsel and denial of continuance | Trial court abused discretion by permitting Razavi Zand to withdraw ~1 month before trial and denying continuance, leaving Connie effectively unrepresented | Razavi Zand asserted mandatory withdrawal under disciplinary rules due to an "egregious" client-lawyer conflict caused by Connie; Connie’s history of serial counsel changes and noncompliance justified denial of continuance | Court: Permitting withdrawal was within discretion (lawyer may withdraw when continuing would violate disciplinary rules). Denial of continuance not an abuse because record lacks proper verified motion/support and evidence showed withdrawal due to Connie’s fault/dilatory conduct. |
| Conservatorship: appointment of sole managing conservator and supervised visitation | Trial court erred: excluded Connie’s exhibits, limited her time, ignored evidence Cliff committed domestic violence, imposed unnecessary supervised, restrictive visitation, and withdrew jury | Cliff pointed to Connie’s repeated violations of orders, school disruptions leading to loss of school enrollment, evidence of alienation and noncompliance, counselors’ recommendations for supervised visits, and disputed domestic-violence accounts | Court: No abuse of discretion. Exhibits were excluded after repeated pretrial noncompliance and alternative objections (hearsay) were sustained; court could credit Cliff’s testimony; supervised, limited visitation supported by evidence (noncompliance, alienation risk, counselor testimony). Jury waiver was reasonable because Connie failed to appear timely. |
| Right to jury trial | Connie argued bench trial was improper because she had a right to jury | Cliff had timely demanded and paid fee; when Connie failed to appear at the appointed time, the court treated the failure as a waiver and Cliff withdrew the jury demand before Connie arrived | Court: No abuse of discretion. Under Rule 220 principles, untimely appearance and long history of noncompliance justified treating her absence as waiver and proceeding with bench trial. |
| Property division (award of marital home to Cliff) | Trial court mischaracterized ~70% of home as Cliff’s separate property and thus abused discretion in dividing estate | Cliff had evidentiary support for characterization and overall division; trial court’s discretion governs just-and-right division | Court: No reversible abuse shown. Appellant failed to obtain findings of fact on asset values; without findings, cannot demonstrate mischaracterization caused a manifestly unjust division. |
Key Cases Cited
- Harrison v. Harrison, 367 S.W.3d 822 (Tex. App.-Houston [14th Dist.] 2012) (prior merits opinion addressing continuance and remanding for new trial)
- Butnaru v. Ford Motor Co., 84 S.W.3d 198 (Tex. 2002) (abuse-of-discretion standard; appellate review defers to trial court unless arbitrary/unreasonable)
- Koslow's v. Mackie, 796 S.W.2d 700 (Tex. 1990) (trial court’s inherent power to sanction discovery/pretrial-order violations under Rule 166)
- TransAmerican Natural Gas Corp. v. Powell, 811 S.W.2d 913 (Tex. 1991) (framework for analyzing death‑penalty sanctions)
- Mercedes‑Benz Credit Corp. v. Rhyne, 925 S.W.2d 664 (Tex. 1996) (a party may acquire jury right by another party’s proper demand and fee)
- Villegas v. Carter, 711 S.W.2d 624 (Tex. 1986) (motions for continuance must comply with rules; presumption against abuse where no verified motion)
- In re P.M.B., 2 S.W.3d 618 (Tex. App.-Houston [14th Dist.] 1999) (exclusion of essential evidence as discovery sanction can be a death‑penalty sanction; scope of permissible sanctions)