The only case on July 17th’s Supreme Court of Texas Order List is a denial of mandamus that leaves open some questions on a trial court’s ability to grant “partial” new trials. It’s In re Mary Jane Barton, a case out of the 7th Court of Appeals in Amarillo. But there’s an East Texas connection.
A couple got divorced in Potter County, Texas (Amarillo). Apparently, that’s where they lived during their marriage. The divorce decree made the husband and wife joint managing conservators of their child. The wife was given the authority to pick the child’s primary residence. But that authority was limited to the counties in the Amarillo area so long as the husband lived there.
This was a problem for the wife. While the divorce was pending, she and the child had moved to East Texas. Specifically, Gilmer, Upshur County, Texas. (Home of the Yamboree) The opinion doesn’t say, but I’d bet that’s where the wife’s family is from. In the month after the divorce decree was entered, she didn’t exactly go rushing back to Amarillo to find a job and a house. Which is to say: She stayed in Gilmer.
Before the Potter County trial court’s jurisdiction expired, the husband moved for, and got, a partial new trial of the divorce on the limited issue of which parent would get to establish the primary residence of the child. The wife objected, and eventually filed a mandamus proceeding, on grounds that the trial court couldn’t reopen that issue without also reopening the issue of the geographic restrictions on that right. The opinion doesn’t say what the wife wanted to do on the geographic issue. Maybe she wanted the husband to be pinned down to a particular Amarillo area location. Or maybe she wanted a complete role reversal, as in: “OK, hubby, you get to pick the primary residence, but it has to be in Upshur County.”
The Amarillo court notes that the wife was tardy in bringing her mandamus action. That alone would justify their denial of her mandamus. But the Amarillo court also reaches the merits, stating that the trial court did not abuse its discretion by granting a new trial just on who was going to pick the child’s residence without reopening any geographic limitations on where that pick could be made.
The Supreme Court of Texas, without issuing an opinion, denied the wife’s attempt to reverse the Amarillo court. So the trial court’s judgment stands.
The issue of partial new trials has vexed appellate courts. There’s a Rule of Appellate Procedure on the subject, but the rule is more of a starting point than a finish line. Tex. R. App. P. 44.1(b) provides that:
If the error affects part of, but not all, the matter in controversy and that part is separable without unfairness to the parties, the judgment must be reversed, and a new trial ordered only as to the part affected by the error.
To me, that’s basically a statement of “use your common sense.” Which isn’t much help because one person’s common sense is another’s lunacy. Rule 44.1(b) provides one specific example:
The court may not order a separate trial solely on unliquidated damages if liability is contested.
That’s very helpful. But if you sense the potential for a partial new trial in your case, get ready for some research and some briefing, because the rest of the examples are in the caselaw like In re Barton.
