Opinion issued March 12, 2015
In The
Court of Appeals For The
First District of Texas ———————————— NO. 01-13-00816-CV ——————————— RETAKA ROMEO NELSON, Appellant V. SHANNON BROCHETTE NELSON, Appellee
On Appeal from the 308th District Court Harris County, Texas Trial Court Case No. 2012-04063
MEMORANDUM OPINION
Appellant Retaka Romeo Nelson and appellee Shannon Brochette Nelson
each sought a divorce from the other. A week before trial, the court struck Retaka’s
jury demand and his pleadings. After a bench trial conducted over Retaka’s objection, the court granted the divorce on grounds of cruelty and appointed
Shannon sole managing conservator and Retaka possessory conservator of the
couple’s two young children. On appeal, Retaka contends that the trial court erred
by striking his jury demand and his pleadings.
We affirm.
Background
Shannon and Retaka were married in 1999. Shannon was a pharmacist.
Retaka worked as a computer consultant, and he earned a pharmacy degree in
2011. The next year he filed an original petition for divorce, pro se, alleging
insupportability as his sole ground. Shannon filed a counter-petition approximately
two weeks later.
Shannon and Retaka had two children, who were three and six years old at
the time of the divorce filings. Retaka did not request sole or joint managing
conservatorship of his children. Instead his petition stated:
5. Custody, Visitation, and Child Support My spouse and I agree to make an agreement about custody, visitation, and support. If we cannot make an agreement, I want the court to make decisions on these issues that are best for our children.
Shannon sought sole managing conservatorship, alleging that joint managing
conservatorship would not be in the children’s best interest. She further alleged
that Retaka had a history of family violence and of neglecting the children. She
2 sought supervised visitation and other orders to “protect the safety and well-being
of the children.”
In conjunction with the filing of his original petition for divorce, Retaka also
filed an affidavit of inability to pay costs, which was contested by the district clerk.
After a hearing the trial court sustained the contest, finding that Retaka was “able
to pay all filing fees, or to give security therefore.” Retaka later filed a jury demand
and paid the fee.
The trial court appointed an amicus attorney, and it ordered the parents to
pay $1,000 each as security for the amicus attorney’s fees. Shannon paid, but
Retaka did not. Instead—and despite the earlier finding that he was not indigent—
he filed an affidavit of inability to pay amicus attorney fees.
At a pretrial hearing, the trial court warned Retaka: “You understand that if
you don’t pay the amicus timely then at some time I can strike your pleadings, and
if you have any type of request for jury trial, I can strike your jury trial motion. Are
you aware of that, sir?” Retaka said, “Yes, sir.” Later in the hearing, the court
announced that trial was set for June 11 and reiterated his warning to Retaka: “In
the event that the amicus is not paid, pleadings will be struck and the jury request
will be struck.”
At a subsequent hearing, the amicus attorney sought additional attorney’s
fees based on approximately 47 hours of work. Although Shannon’s attorney asked
3 the court to exercise its inherent power to strike Retaka’s jury demand due to his
failure to pay court-ordered amicus attorney fees, the court deferred a decision on
the matter until the time of trial. The court confirmed its prior order that each party
pay $1,000 and increased it by a total of $8,000 as security for already incurred
amicus attorney fees. The court ordered Retaka to pay $6,600 and Shannon to pay
a total of $3,400. Both parents indicated that they lacked the resources to make the
lump-sum payments, and the amicus attorney indicated that she would be willing
to work out a payment plan with them.
After Retaka failed to pay the amicus attorney by the trial court’s deadline,
Shannon filed an amended motion for sanctions based on his litigation conduct,
some of which she characterized “frivolous,” “groundless,” and “harassing.” She
also filed a motion to strike Retaka’s jury demand. Among other things, the motion
identified Retaka’s failure to pay the court-ordered amicus attorney fees as grounds
for imposing sanctions. At the pretrial hearing held the same day, both Shannon’s
attorney and the amicus attorney argued in favor of striking Retaka’s jury demand
for failure to pay court-ordered fees and based on the behavior alleged in the
motion for sanctions. Shannon’s attorney also asked the court to strike Retaka’s
pleadings based on his “abuse of the system.” After hearing arguments from the
parties, the court struck both Retaka’s jury demand and pleadings. However, the
court repeatedly invited Retaka to participate at trial.
4 At trial, Shannon testified that in January 2012, Retaka took the children
away for three months, without telling her where they were or allowing her access
to them. He enrolled the older child in three schools in three months before
withdrawing her from school altogether. Shannon testified that the children lived
with Retaka in shelters and slept “on church pews and cots.” Both children
suffered emotional and behavioral disturbances as a result of their time away from
their mother. The older child feared being taken by Retaka and required therapy to
address her anxiety.
Shannon said the children did not want to see their father. During supervised
visitations he failed to follow rules by interrogating the children, and he failed to
provide them with food during longer visits. Shannon testified that Retaka had a
pharmacy internship in California and that she believed he intended to move there.
She feared that he would take the children to California and again deprive her of
access to them.
Throughout the marriage, Shannon was the primary caregiver for the
children and her mother—not Retaka—was the secondary caregiver. She was also
the primary financial support for the family. When Retaka earned money, he
considered it his own and used it for personal items, like a two-seat sportscar he
purchased when she was pregnant with their second child.
5 Shannon described her marriage to Retaka as tumultuous and testified that
he had a mercurial personality, alternating between charming and threatening. She
testified that Retaka had committed acts of domestic violence against her and at
times there were periods of “daily abuse.” Retaka suffered from anxiety,
depression, and rage, which could be well-controlled by medication, but he rarely
took it. Retaka disrespected Shannon, insulted her in front of the children, and
encouraged them to disrespect her and to choose sides when they argued.
Retaka refused to put on evidence at trial, in part because he believed the
nonjury proceeding violated his right to a jury trial. He made numerous repeated
objections on this ground, all of which were overruled. He presented no witnesses
and no evidence.
After the bench trial, the court awarded sole managing conservatorship to
Shannon. Retaka appealed.
Analysis
On appeal, Retaka brings two issues. He challenges the trial court’s order
striking his jury demand and his pleadings.
I. Jury demand
We first consider Retaka’s contention that the court erred by denying him a
trial by jury. We review a court’s denial of the right to a jury trial under an abuse
of discretion standard. See Mercedes-Benz Credit Corp. v. Rhyne, 925 S.W.2d 664,
6 666 (Tex. 1996); Sims v. Fitzpatrick, 288 S.W.3d 93, 102 (Tex. App.—Houston
[1st Dist.] 2009, no pet.). We consider the entire record and will find an abuse of
discretion only when the trial court’s decision was arbitrary, unreasonable, and
without reference to guiding principles. Mercedez-Benz Credit, 925 S.W.2d at 666;
Sims, 288 S.W.3d at 102.
The Texas Constitution guarantees that the right to a trial by jury “shall
remain inviolate.” TEX. CONST. art. I, § 15; see also id. art. V, § 10. The right to a
jury trial has a widely acknowledged “sacred place in English and American
history.” White v. White, 108 Tex. 570, 196 S.W. 508, 512 (1917); see In re Reiter,
404 S.W.3d 607, 609 (Tex. App.—Houston [1st Dist.] 2010, orig. proceeding); see
also Taylor v. Taylor, 63 S.W.3d 93, 98–101 (Tex. App.—Waco 2001, no pet.).
The Texas Constitution also authorizes the Legislature to “pass such laws as may
be needed to regulate” the right to a jury trial and “to maintain its purity and
efficiency.” TEX. CONST. art. I, § 15. To invoke the right to a jury trial, a party
must make a written request for a jury, pay the jury fee or file an oath of inability
to pay, and do so within a reasonable time before the date set for trial of the case.
See TEX. R. CIV. P. 216; see also TEX. CONST. art. V, § 10.
In a suit affecting the parent-child relationship, a party may demand a jury
trial except in two circumstances which do not apply to this case. See TEX. FAM.
CODE § 105.002. However the statute specifically prohibits the court from
7 submitting to the jury questions on the issues of child support, terms or conditions
of possession or access to the child, or “any right or duty of a conservator, other
than the determination of which joint managing conservator has the exclusive right
to designate the primary residence of the child.” Id. § 105.002(c)(2).
Here, it is undisputed that Retaka made a written request for a jury and paid
the fee within a reasonable time before the first trial setting in this case. Shannon
concedes that the court’s striking of Retaka’s jury demand was error. In light of the
parties’ agreement that the trial court erred by striking Retaka’s jury demand, we
will focus our inquiry on whether any such error was harmful.
“The wrongful denial of a jury trial is harmful when the case contains a
question of material fact.” Caldwell v. Barnes, 154 S.W.3d 93, 98 (Tex. 2004);
accord Mercedes-Benz Credit, 925 S.W.2d at 667. Stated another way, a trial
court’s “refusal to grant a jury trial is harmless error only if the record shows that
no material issues of fact exist and an instructed verdict would have been
justified.” Halsell v. Dehoyos, 810 S.W.2d 371, 372 (Tex. 1991) (per curiam)
(citing Olson v. Tex. Comm. Bank, 715 S.W.2d 764, 767 (Tex. App.—Houston [1st
Dist.] 1986, writ ref’d n.r.e.)). The question then is whether there are disputed fact
issues in this case upon which a jury could pass. See Weng Enters., Inc. v. Embassy
World Travel, Inc., 837 S.W.2d 217, 222 (Tex. App.—Houston [1st Dist.] 1992, no
writ).
8 Shannon argues that the error was harmless; she contends that there were no
disputed questions of material fact because Retaka stated in his petition that the
parties “agree to try to make an agreement about custody, visitation, and support,”
and that if they were unable to agree, “I want the court to make decisions on these
issues that are best for our children.” Shannon also argues that the error in denying
him a jury trial was harmless because he submitted no proposed verdict or jury
questions, and he presented no evidence at trial.
Retaka’s request for the court to decide issues of custody, visitation, and
child support did not necessarily imply that there were no material questions of
fact. Rather, it was a request for the judge, not a jury, to be the factfinder on those
matters. Shannon’s argument hinges on the question of whether the phrasing of the
petition constituted a waiver of his jury demand. Waiver is the “intentional
relinquishment of a known right or intentional conduct inconsistent with claiming
that right.” Jernigan v. Langley, 111 S.W.3d 153, 156 (Tex. 2003). Considering the
entirety of the record, we do not find that Retaka waived his right to a jury trial. He
filed his jury demand and paid the fee almost nine months after he first filed for
divorce.
Retaka argues that there were fact questions because reasonable jurors could
have found that Shannon did not overcome the presumption of joint managing
9 conservatorship.1 See TEX. FAM. CODE § 153.131. But he presented no evidence at
trial, instead relying entirely on his objection to the proceeding taking place
without a jury. 2 Shannon testified that approximately one month before trial,
Retaka sent her an email saying that he did not wish to continue prosecuting the
divorce, that he was willing to agree to terms of a divorce, and that he was willing
to consider relinquishing his parental rights. In addition, a fax transmitted to
Shannon’s attorney was admitted into evidence. In it, Retaka stated that he was “no
longer interested in pursuing this divorce . . . [and] fighting for custody, neither
visitation.”
The trial court appointed Shannon sole managing conservator of the
children. In determining conservatorship issues, the best interest of the children is
the trial court’s primary consideration. TEX. FAM. CODE § 153.002. In doing so, a
1 Retaka also argued that reasonable jurors could have disbelieved Shannon’s evidence of cruelty. The court’s rendition of divorce on the fault grounds of cruelty would be relevant in this proceeding if Retaka were complaining about a disproportionate award of the marital estate. See, e.g., Newberry v. Newberry, 351 S.W.3d 552, 557 (Tex. App.—El Paso 2011, no pet.). On appeal he does not challenge the division of the marital estate, and nothing in the record indicates that the division of the estate was in fact disproportionate. In addition, he put forth no evidence to controvert Shannon’s evidence of physical and emotional abuse and cruelty. Accordingly, any error in denying a jury trial as to the grounds for divorce was harmless. 2 Retaka also made an argument about the appointment of the judge who presided over the trial and the location of the trial, but he assigns no error with respect to those issues on appeal.
10 court may consider relevant factors such as a parent’s ability to provide a safe,
stable, and nonviolent environment for the children, to meet their needs and act in
their best interests, and to help the children maintain family relationships. See Lenz
v. Lenz, 79 S.W.3d 10, 16–17 (Tex. 2002).
Shannon presented substantial evidence to establish that sole managing
conservatorship was in the best interest of the children. She testified about her
ability to care for the children and provide for them financially. She also testified
about Retaka’s history of domestic violence, unresolved psychological problems,
and an incident in which he hid the children from her for three months, during
which time they slept in shelters and moved frequently. Shannon also testified that
Retaka intended to move to California, creating a risk of instability for the
children. Finally, she testified about Retaka’s communication the month before
trial in which he indicated he no longer wished to pursue custody of the children
and would consider relinquishing his parental rights. Retaka did not rebut any of
this evidence; he presented no evidence at all. Because the evidence supported
appointment of Shannon as sole managing conservator, and no evidence
controverted that outcome or supported appointment of Retaka as a joint managing
conservator, there were no material fact questions for a jury to decide. See Olson,
715 S.W.2d at 767–68 (finding denial of jury trial would have been harmless when
appellants presented no evidence in their own defense at trial).
11 In light of the evidence presented by Shannon, and because Retaka provided
no controverting evidence, the trial court would have been justified in rendering a
directed verdict appointing Shannon sole managing conservator even if the trial
had been to a jury. As such, we hold that any error in denying Retaka a jury trial
was harmless. See Halsell, 810 S.W.2d at 372; Olson, 715 S.W.2d at 767–68.
II. Pleadings
Retaka additonally argues that the trial court erred by striking his pleadings.
He contends that he did not have sufficient notice of Shannon’s motion for
sanctions, which was filed on the morning of the hearing. He also contends that
striking his pleadings was an improper sanction because it was disproportionate,
there was no nexus between his alleged actions and the penalty, and it was not the
minimum effective sanction. He also argues that the court erred by failing to
explain its reasoning for the sanction.
We review a trial court’s imposition of sanctions under an abuse of
discretion standard. Nath v. Tex. Children’s Hosp., 446 S.W.3d 355, 361 (Tex.
2014); accord Low v. Henry, 221 S.W.3d 609, 614 (Tex. 2007). A trial court
abuses its discretion by imposing sanctions without reference to guiding rules and
principles, such that its ruling was arbitrary or unreasonable. Nath, 446 S.W.3d at
361; Cire v. Cummings, 134 S.W.3d 835, 838–39 (Tex. 2004). We will not find an
12 abuse of discretion in the imposition of sanctions if some evidence supports the
trial court’s decision. Nath, 446 S.W.3d at 361.
A sanction must comply with due process: it must be just and not excessive.
Id.; TransAmerican Natural Gas Corp. v. Powell, 811 S.W.2d 913, 917 (Tex.
1991). “A just sanction must be directed against the abusive conduct with an eye
toward remedying the prejudice caused to the innocent party, and the sanction must
be visited upon the true offender.” Nath, 446 S.W.3d at 363 (citing
TransAmerican, 811 S.W.2d at 917). A sanction must not be excessive—that is,
the “punishment” should “fit the crime” and the sanction should be no more severe
than necessary to satisfy its legitimate purposes, like securing compliance with
rules of procedure, punishing rule violators, and deterring future misconduct. Id. A
trial court ordinarily must consider and test lesser sanctions that would promote
compliance with the rules. See id. (citing TransAmerican, 811 S.W.2d at 917).
“Texas courts have the inherent power to sanction for an abuse of the
judicial process that may not be covered by any specific rule or statute.” Island
Entm’t v. Castaneda, 882 S.W.2d 2, 5 (Tex. App.—Houston [1st Dist.] 1994, writ
denied); accord Houtex Ready Mix Concrete & Materials v. Eagle Constr. &
Envtl., L.P., 226 S.W.3d 514, 524 (Tex. App.—Houston [1st Dist.] 2006, no pet.);
Harmouch v. Michael A. Rassner, D.D.S., P.C., No. 01-10-00367-CV, 2011 WL
1435008, at *2–3 (Tex. App.—Houston [1st Dist.] Apr. 14, 2011, no pet.) (mem.
13 op.); see also In re Bennett, 960 S.W.2d 35, 40 (Tex. 1997) (per curiam). “Inherent
power to sanction exists to the extent necessary to deter, alleviate, and counteract
bad faith abuse of the judicial process.” Houtex Ready Mix Concrete, 226 S.W.3d
at 24. “Bad faith is more than bad judgment or negligence.” Benavides v. Knapp
Chevrolet, Inc., No. 01-08-00212-CV, 2009 WL 349813, at *4 (Tex. App.—
Houston [1st Dist.] Feb. 12, 2009, no pet.) (mem. op.). A showing of bad faith
requires evidence of the conscious doing of wrong for a dishonest, discriminatory,
or malicious purpose. Id.; accord Mattly v. Spiegel, Inc., 19 S.W.3d 890, 896 (Tex.
App.—Houston [14th Dist.] 2000, no pet.); Campos v. Ysleta Gen. Hosp., Inc., 879
S.W.2d 67, 71 (Tex. App.—El Paso 1994, writ denied). “When a trial court
imposes sanctions under its inherent power, it should make specific findings to
support its conclusion that the conduct complained of significantly interfered with
its legitimate exercise of its core functions.” Harmouch, 2011 WL 1435008, at *3
(citing Houtex, 226 S.W.3d at 524). “These core functions include hearing
evidence, deciding issues of fact raised by the pleadings, deciding questions of law,
rendering final judgments, and enforcing judgments.” In re Texas Dep’t of Family
& Protective Servs., 415 S.W.3d 522, 529 (Tex. App.—Houston [1st Dist.] 2013,
[mand. denied]); Island Entm’t, Inc., 882 S.W.2d at 5.
In this case, the trial court imposed a sanction orally from the bench; there is
no signed order specifying a particular rule used to sanction Retaka. The divorce
14 decree refers to Retaka as “petitioner” in some places and thus does not reflect the
striking of his pleadings. However, as the court clearly indicated that Retaka’s
pleadings were struck, the trial court’s inherent power appears to be the source of
authority for its sanction. See Houtex Ready Mix Concrete, 226 S.W.3d at 524.
In a suit affecting the parent-child relationship like the divorce in this case, a
trial court may appoint an amicus attorney if it “finds that the appointment is
necessary to ensure the determination of the best interest of the child.” TEX. FAM.
CODE § 107.021. A court may not, however, require an amicus attorney “serve
without reasonable compensation” for services rendered. Id. There is, therefore, no
question that the court was authorized to appoint an amicus attorney and to make
orders requiring the parties to compensate her for her services.
Retaka contends on appeal that he had no notice that the court would
consider striking his pleadings as a sanction for failure to pay the amicus fees.
Although Shannon’s motion for sanctions was filed the day of the hearing, the
record shows that the court twice warned Retaka that if he failed to pay the amicus
attorney fees as ordered, it could strike his pleadings. Twice Retaka indicated that
he understood. Therefore, we conclude that he had notice that this sanction could
be imposed.
Retaka also argues throughout his brief that he is indigent and that there was
no challenge to his affidavit of indigency. The record does not support this
15 contention. A party who is unable to afford costs may file an affidavit in lieu of
paying or giving security for an original action. TEX. R. CIV. P. 145. Upon the
filing of an affidavit of indigency, “the clerk must docket the action, issue citation
and provide such other customary services as are provided any party.” Id. An
affidavit of indigency may be contested, but if it is not contested, indigency is
established as a matter of law. See id. In this case, Retaka’s initial affidavit of
indigency was successfully contested, and the court found that he was able to pay
costs. Retaka subsequently filed additional affidavits of inability to pay the amicus
attorney fees, a procedure not contemplated by the Rules of Civil Procedure. See In
re Velez-Uresti, 361 S.W.3d 200, 206 (Tex. App.—El Paso 2012, pet. denied).
Retaka contends that because his successive filings were not challenged, he was
indigent as a matter of law. Yet he provides no authority—and we find none—for
the proposition that indigency is established as a matter of law by the filing of an
affidavit of inability to pay amicus fees after a court already has sustained a contest
to an affidavit of indigency. The court found that Retaka was not indigent, and he
did not challenge that finding on appeal. Accordingly, we conclude that he was not
indigent.
Retaka argues that there was no connection between his alleged actions and
the penalty imposed. However, the 18-month course of pretrial litigation showed
that Retaka’s courtroom conduct lengthened the proceedings. As the court
16 explained to Retaka, striking his pleadings would position him as the respondent,
not the petitioner, and allow him to present his case, but only after Shannon
presented her case first. This bears a connection to the wrong in that it was an
attempt to regulate the length of trial and the amount of amicus attorney fees
incurred.
Retaka also argues that striking his pleadings was a disproportionate
sanction, and he suggests that the court could have imposed a less severe sanction
such as limiting his filings or requiring the payment of fees and expenses
associated with responding to his filings. The trial court waited until the week
before trial to impose this sanction. Limiting his filings at that point would not
have “fit the crime.” In addition, he had demonstrated that ordering him to pay fees
would be ineffective as the sanction was imposed due to his failure to pay court-
ordered amicus attorney fees.
Retaka additionally argues that striking his pleadings was not the minimum
effective sanction that the court could have imposed. He suggests lesser sanctions
such as striking evidence and pleadings concerning his allegations about
Shannon’s fault. He also argues that his actions did not justify a presumption that
his claims or defenses lack merit. Ordinarily, when a trial court strikes a party’s
pleadings as a sanction, it is considered a death-penalty sanction because it results
in either dismissal of a plaintiff’s claims or a default judgment against a
17 wrongdoing defendant. E.g., Paradigm Oil, Inc. v. Retamco Operating, Inc., 372
S.W.3d 177, 184 (Tex. 2012) (default); Cire, 134 S.W.3d at 841 (dismissal). Thus,
the striking of a party’s pleadings will, in most cases, deprive the party of a
decision on the merits. Therefore, for death-penalty sanctions to be just, ordinarily
there must be a determination that the wrongdoing party’s actions justify a
presumption that his claims or defenses lack merit. See Cire, 134 S.W.3d at 841;
TransAmerican, 811 S.W.2d at 918; Salomon v. Lesay, 369 S.W.3d 540, 557–58
(Tex. App.—Houston [1st Dist.] 2012, no pet.).
But that reasoning does not apply in this case, in which Retaka did not plead
for any specific relief other than a no-fault divorce, and when Shannon’s cross-
petition for divorce meant that the issues of conservatorship, custody, and
visitation remained pending before the court. Retaka’s suggestion—that a lesser
available sanction may have been the striking of evidence and his pleadings
pertaining to Shannon’s alleged wrongdoing—would have been no sanction at all
because he did not allege that Shannon committed any wrongful acts. His pleading
asked for no more than a simple no-fault divorce, he did not seek any particular
form of conservatorship of his children, and he asked the court to resolve any
question of fact and make any appropriate order if he and Shannon could not reach
an agreement. The trial court repeatedly invited Retaka to participate at trial, and
18 he refused to do so. But he was not prevented from doing so by the striking of his
pleadings.
Having considered the entirety of the record, we conclude that there was
some evidence to support the court’s action in striking Retaka’s pleadings as a
sanction under its inherent power to sanction. We further conclude that under the
circumstances presented by this case, striking Retaka’s pleadings was just and not
excessive.
Conclusion
We overrule all of Retaka’s issues, and we affirm the judgment of the trial
court.
Michael Massengale Justice
Panel consists of Justices Jennings, Massengale, and Lloyd.