Debra Jackson v. Terry Jackson

• Court: Court of Appeals of Texas
• Decided: March 15, 2018
• Docket: 09-16-00189-CV
• Status: Published

Opinion

In The

Court of Appeals Ninth District of Texas at Beaumont ____________________ NO. 09-16-00189-CV ____________________

DEBRA JACKSON, Appellant

V.

TERRY JACKSON, Appellee

_______________________________________________________ ______________

On Appeal from the 410th District Court Montgomery County, Texas Trial Cause No. 14-11-12419-CV ________________________________________________________ _____________

MEMORANDUM OPINION

In 2014, Debra Jackson (“Debra”) filed a petition for divorce from Terry

Jackson (“Terry”). Terry filed a counter-petition for divorce. A jury determined the

questions regarding conservatorship of Terry and Debra’s two children, the right to

determine the children’s residence, and any geographic restrictions. The trial court

held a bench trial regarding visitation and property division. On April 26, 2016, the

1 trial court signed a final divorce decree. Debra filed a timely notice of appeal. We

affirm the trial court’s judgment.

In her first appellate issue, Debra argues that her trial counsel rendered

ineffective assistance of counsel. “‘[T]he doctrine of ineffective assistance of

counsel does not extend to most civil cases, including divorce cases.’” Sherwood v.

Sherwood, No. 09-15-00133-CV, 2016 Tex. App. LEXIS 1939, at *2 (Tex. App.—

Beaumont 2016, no pet.) (mem. op.) (quoting Blair v. McClinton, No. 01-11-00701-

CV, 2013 Tex. App. LEXIS 8048, at *8 (Tex. App.—Houston [1st Dist.] July 2,

2013, pet. denied) (mem. op.)); see Chrisman v. Chrisman, 296 S.W.3d 706, 707

(Tex. App.—El Paso 2009, no pet.) (Although the Texas Supreme Court has

determined that parents are entitled to effective assistance in a termination-of-

parental-rights proceeding, “[n]o Texas court has determined that a petitioner or

respondent in a dissolution proceeding has the constitutional right to effective

assistance of counsel and we decline to do so.”). Accordingly, we overrule issue one.

In her second appellate issue, Debra asserts that the trial court erred in denying

Debra’s request that the amicus attorney testify as a fact witness. An amicus attorney

appointed to assist the court has various duties as provided for in Section 107.003 of

the Texas Family Code. See Tex. Fam. Code Ann. § 107.003 (West Supp. 2017).

However, section 107.007(a)(4) of the Texas Family Code provides that an amicus

2 attorney is prohibited from testifying in court except as otherwise authorized by Rule

3.08 of the Texas Disciplinary Rules of Professional Conduct. Id. § 107.007(a)(4)

(West 2014). We find nothing in the record before us indicating that the Rule 3.08

exception applies. At trial and on appeal, Debra did not argue that Rule 3.08

authorized the amicus attorney to testify in the present case, and Debra made no offer

of proof at trial as to what she believed the amicus attorney would have testified to

or how the trial court’s failure to call the amicus attorney to testify adversely affected

her case. See Tex. Disciplinary Rules Prof’l Conduct R. 3.08, reprinted in Tex. Gov’t

Code Ann., tit. 2, subtit. G, app. A (West 2013); Tex. R. App. P. 33.1.

Debra further argues that this Court’s decision in In the Interest of A.K.M.,

No. 09-12-00464-CV, 2014 Tex. App. LEXIS 2230 (Tex. App.—Beaumont Feb. 27,

2014, pet. denied) (mem. op.), “would show that the [a]micus had given testimony

in previous hearing without objection, the amicus should have been allowed to be

called in the final trial.” In A.K.M., this Court determined that although the trial court

allowed the amicus attorney to testify at the emergency hearing regarding contested

issues of fact, the appellant did not object during the emergency hearing to the

amicus attorney testifying and, therefore, appellant waived the complaint on appeal.

See id. at **35-36. The reasoning in A.K.M. does not support Debra’s argument that

3 the trial court erred in denying Debra’s request to call the amicus attorney as a fact

witness. We overrule issue two.1

The trial court’s judgment is affirmed.

AFFIRMED.

_________________________ LEANNE JOHNSON Justice

Submitted on February 27, 2018 Opinion Delivered March 15, 2018

Before McKeithen, C.J., Horton and Johnson, JJ.

1 Debra only presents the foregoing two issues in the argument section of her appellate brief. However, she states in her “statement of the facts” that “[t]hroughout a trial by jury regarding possession, access, and custody of children and a trial by judge regarding property, Appellant was denied due process, a fair and just division of assets, and the best interest for her children by the ineffective assistance of her counsel and denial of her right to call the amicus as a witness.” Debra did not brief or cite to any authority for a due process challenge or a challenge to the just division of her assets. She fails to specify what process she was denied or explain how she was denied a fair and just division of the estate. The statement she included within her “statement of the facts” is insufficient to raise any additional issue. See Tex. R. App. P. 38.1(i).