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In re Webb-Goetz

Court of Appeals of Texas, First District

July 23, 2019

IN RE JENNIFER WEBB-GOETZ, Relator

          Original Proceeding on Petition for Writ of Mandamus

          Panel consists of Chief Justice Radack and Justices Higley and Hightower.

          MEMORANDUM OPINION

          LAURA CARTER HIGLEY, JUSTICE

         Relator, Jennifer Webb-Goetz ("Webb"), has filed a petition for writ of mandamus, seeking an order directing the respondent[1] to vacate her denial of Webb's request for a jury trial in a suit to modify the parent-child relationship.

         We conditionally grant the petition, in part, and deny the petition, in part.

         Background

         Webb and real party in interest, Joseph Goetz ("Goetz"), divorced in December 2010. In their divorce decree, the trial court named Webb and Goetz the joint managing conservators of their two children, ordered Goetz to pay child support, and ordered that

the primary residence of the children shall be within ten[] miles of [address] Harris County, Texas, and the parties shall not remove the children from within ten[] miles of [address] Harris County, Texas for the purpose of changing the primary residence of the children until the right to designate the primary residence is modified by further order of the court of continuing jurisdiction or by written agreement signed by the parties and filed with the court.

         The terms of the decree included that Webb and Goetz each had an "independent right, after consultation with the other parent conservator, to consent to medical and dental treatment" for the children.

         In October 2016, Goetz filed a petition to modify the parent-child relationship. In his petition, as amended, Goetz sought the exclusive right to determine the primary residence of the children and the exclusive right, after consultation with Webb, to consent to medical and dental treatment for the children. Goetz further sought to modify the child support order and the terms and conditions of Webb's possession of the children.

         In January 2017, Webb filed a counterpetition to modify the parent-child relationship. She sought the exclusive right to designate the primary residence of the children and, asserting that Goetz was purposefully underemployed, sought to modify the child support order.

         On August 28, 2018, Goetz filed a request for a jury trial and paid the fee. The case was set for a jury trial on February 4, 2019.

         On February 1, 2019, the trial court conducted a telephonic pretrial conference that was not recorded. It is undisputed that, during the conference, Goetz withdrew his request for a jury trial and that the trial court reset the case for a bench trial on March 4, 2019. The mandamus record shows that, later on February 1, 2019, Webb filed a written request for a jury trial and paid the fee. In her request, Webb stated that, during the conference, Goetz had unilaterally withdrawn his request for a jury trial over her objection.

         On February 27, 2019, the trial court conducted a pretrial hearing, in part, on Webb's written request for a jury trial. During the hearing, a record of which has been filed in the instant proceeding, the trial court heard argument of counsel and admitted documentary evidence. Testimony was not presented. Counsel for Goetz argued that Webb's request for a jury trial constituted a dilatory tactic. Specifically, Goetz asserted, notwithstanding the timeliness of Webb's request, she had previously delayed trial by changing attorneys, had previously failed to timely respond to discovery, and had failed to prosecute her counterclaims. The trial court noted that the case had been on file for over two years and had been reset for trial 13 times by one or both parties. The trial court warned that if it granted Webb's request for a jury trial, it would not reset trial again. The trial court stated, "If you [counsel for Webb] ask for a jury trial and I grant it, you are going to a jury on Monday [March 4, 2019]." Counsel for Webb responded, "That's what we want." Goetz argued, "Even if you [trial court] push the case to trial on Monday and have the trial by jury, you ...


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