CAUSE NO.

DF15-09887-S

IN THE INTEREST OF § IN THE DISTRICT COURT

§
JA.D.Y. AND JU.D.Y. § 255TH JUDICIAL DISTRICT
§
MINOR CHILDREN § DALLAS COUNTY, TEXAS

MOTION TO CONFORM TO JURY VERDICT

COMES NOW Petitioner, ANNE GEORGULAS, and files this Motion to

Conform to Jury Verdict 1 and shows the Court in support the following:

1. Background

On October 15-21, 2019, this case was tried to a jury.

On October 21, 2019, the jury answered the following jury questions:

QUESTION NO. 1: Should the current Joint Managing

Conservatorship be replaced by a Sole Managing Conservatorship of
JAMES and JUDE YOUNGER?

JURY’S ANSWER: YES

QUESTION NO. 2: Should JEFFREY DAMON YOUNGER be

appointed as the Sole Managing Conservator of JAMES and JUDE
YOUNGER?

JURY’S ANSWER: NO

On October 24, 2019, the Court contravened the jury’s answers by ordering

that the parties be named Joint Managing Conservators. The Court further

1
This Motion to Conform to Jury Verdict is filed contemporaneously with a Motion to Recuse Judge Kim Cooks. The
filing of this Motion to Conform to Jury Verdict is in no way a waiver of the arguments made in the Motion to Recuse,
and is requested to be heard after the Motion to Recuse.

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MOTION TO CONFORM TO JURY VERDICT PAGE 1
contravened the jury’s answers by modifying the rights and duties of each

conservator, specifically regarding the appointment of a sole managing conservator,

and the determination of which conservator has the exclusive right to designate the

primary residence of the children.

2. A trial court cannot contravene a jury’s answers on conservatorship.

In a jury trial:

(1) a party is entitled to a verdict by the jury and the court

may not contravene a jury verdict on the issues of:

(A) the appointment of a sole managing

conservator;
(B) the appointment of joint managing
conservators;
(C) the appointment of a possessory conservator;
(D) the determination of which joint managing
conservator has the exclusive right to designate the
primary residence of the child;
(E) the determination of whether to impose a
restriction on the geographic area in which a joint
managing conservator may designate the child’s
primary residence; and
(F) if a restriction described by Paragraph (E) is
imposed, the determination of the geographic area
within which the joint managing conservator must
designate the child’s primary residence.

TEX. FAM. CODE ANN. § 105.002(c)(1). “If an issue is properly pleaded and is

supported by some evidence, a litigant is entitled to have controlling questions

submitted to the jury.” Triplex Comms., Inc. v. Riley, 900 S.W.2d 716, 718 (Tex.

1995). Thus, the statute’s plain language means that a party is entitled to a jury

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MOTION TO CONFORM TO JURY VERDICT PAGE 2
verdict on the above issues if they were properly pleaded, and a trial court is not

authorized to contravene that verdict by ordering something other than what the jury

found. Lenz v. Lenz, 79 S.W.3d 10, 20 (Tex. 2002); Jenkins v. Jenkins, No. 05-98-

01849-CV, 2001 WL 507221, at *5 (Tex. App.—Dallas May 15, 2001, pet. denied)

(not designated for publication) (“However, the trial court may not contravene a jury

verdict on the determination of a managing conservator.”).

In Lenz, the mother pleaded to designate the child’s primary residence. Lenz,

79 S.W.3d at 12–13. The jury questions were (1) had the requirements for

modification been proven, and (2) if so, which parent should have the exclusive right

to determine the county of residence and the primary residence of the children. Lenz

v. Lenz, 40 S.W.3d 111, 113 (Tex. App.—San Antonio 2000), rev’d and remanded,

Lenz 2, 79 S.W.3d at 21. The jury answered the question in favor of the mother to

allow her to designate the child’s primary residence. Id. The jury was never asked,

and therefore never answered, what, if any, geographic restriction should exist. Id.

The trial court subsequently ordered that mother could designate the child’s primary

residence, but only within a geographic restriction. Id. The Supreme Court of Texas

reversed because the trial court contravened the jury’s verdict by adding a

geographic restriction, where no question regarding geographic restriction was

posed to the jury. Lenz, 79 S.W.3d at 12–13.

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 Furthermore, a trial court has a duty to harmonize jury findings when possible,

rather than determining whether they may reasonably be viewed as conflicting.

Bender v. S. Pac. Transp. Co., 600 S.W.2d 257, 260 (Tex. 1980) (quoting Producers

Chem. Co. v. McKay, 366 S.W.2d 220, 224 (Tex. 1963)). If only “mere speculation”

and “assumption” can be used to reconcile conflicting jury findings, i.e. one answer

says the plaintiff wins and the other says the defendant wins, the conflict is fatal, and

the remaining fact issue must be determined. USAA Tex. Lloyds Co. v. Menchaca,

545 S.W.3d 479, 509 (Tex. 2018).

Here, ANNE GEORGULAS pleaded for certain things to be modified that are

not part of the joint managing conservator’s right and duties. Respondent, JEFFREY

YOUNGER, pleaded that he be named sole managing conservator and that ANNE

GEORGULAS be named possessory conservator. Accordingly, JEFFREY

YOUNGER was entitled to a jury verdict on the issue of sole managing conservator

and possessory conservator, which the Court could not contravene. See Tex. Fam.

Code Ann. § 105.002(c)(1); Lenz, 79 S.W.3d at 12–13; Triplex Comms., Inc., 900

S.W.2d at 718.

The jury answered that a sole managing conservator should be appointed.

Neither party pleaded for joint managing conservatorship. Neither party pleaded to

change the rights and duties imposed by the Court’s last order. And the jury was not

posed any question regarding those rights and duties, including the primary

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residence of the children. Accordingly, JEFFREY YOUNGER was entitled to the

verdict on sole managing conservatorship, and the Court cannot contravene it by

appointing the parties joint managing conservators. See Tex. Fam. Code Ann. §

105.002(c)(1)(A); Lenz, 79 S.W.3d at 20; Jenkins, 2001 WL 507221, at *5.

Furthermore, the jury answered that JEFFREY YOUNGER should not be the

sole managing conservator, and the Court cannot contravene that verdict. See Tex.

Fam. Code Ann. § 105.002(c)(1)(A); Lenz, 79 S.W.3d at 20; Jenkins, 2001 WL

507221, at *5. Thus, even if the jury did not answer a question that ANNE

GEORGULAS should be appointed as the sole managing conservator, harmonizing

the answers shows that (1) there should be a sole managing conservator, and (2) it

should not be JEFFREY YOUNGER. See Bender, 600 S.W.2d at 260. Therefore,

ANNE GEORGULAS is the only other option for the Court to appoint as the sole

managing conservator. See id.; cf. Tex. R. Civ. P. 279.

The Court’s orders, however, contravene the jury’s answers. The Court found

a conflict in the jury’s answers rather than harmonizing the answers, which the Court

has a duty to do. See Bender, 600 S.W.2d at 260. In its ruling, the Court appointed

the parties joint managing conservators even though the jury answered that sole

managing conservatorship should replace joint managing conservatorship. See Tex.

Fam. Code Ann. § 105.002(c)(1)(A). No alternative request or question to the jury

regarding joint managing conservatorship exists. Thus, the Court’s order for joint

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managing conservators is in direct contravention of the jury’s answer and is an abuse

of discretion. See Tex. Fam. Code Ann. § 105.002(c)(1)(A); Lenz, 79 S.W.3d at 20;

Jenkins, 2001 WL 507221, at *5. Accordingly, the Court should change its ruling

to conform to the jury’s verdict.

3. JEFFREY YOUNGER has waived trying the issue of joint managing

conservatorship.

If a party fails to plead for joint managing conservatorship, fails to request a

jury question on joint managing conservatorship, and fails to object that no such

question regarding joint managing conservatorship was asked, that party has waived

any issues regarding joint managing conservatorship. In re P.A. C, 498 S.W.3d 210,

214 (Tex. App.—Houston [14th Dist.] 2016, pet. denied). Furthermore, if that issue

was not pleaded or tried by consent and was not presented to the jury, the trial court

cannot rule on the issue to contradict the jury’s verdict. Id. at 215.

JEFFREY YOUNGER did not plead for joint managing conservatorship.

JEFFREY YOUNGER did not request a jury question whether both parties should

be appointed joint managing conservators. And JEFFREY YOUNGER did not

object when no such question was asked. Thus, JEFFREY YOUNGER has waived

the issue of the parties being appointed joint managing conservators. See id. at 214.

And this Court cannot grant something contrary to what the jury answered and that

the parties did not request. See id. at 215. Although both parties did not have

pleadings regarding the same issue, one party’s pleadings is sufficient to put that
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issue in dispute and allow the jury to answer a question on that issue, which the Court

cannot contravene. See TEX. FAM. CODE ANN. § 105.002; In re P.A. C, 498 S.W.3d

at 214. The father in P.A. C did not request joint managing conservatorship, and the

mother only requested to have the exclusive right to determine the child’s primary

residence. In re P.A. C, 498 S.W.3d at 214. The jury answered that father should

not be named sole managing conservator, so it was proper for the court to keep him

as a joint managing conservator, i.e. not modify conservatorship. Id. Here,

JEFFREY YOUNGER requested sole managing conservatorship, putting that

appointment at issue. And because the jury answered that there should be a sole

managing conservator, and that the sole managing conservator should not be

JEFFREY YOUNGER, the Court can appoint ANNE GEORGULAS as sole

managing conservator, which does not contravene the jury’s answers but harmonizes

them. See id.; see also Bender, 600 S.W.2d at 260. Accordingly, the Court should

change its ruling to conform to the jury’s verdict.

4. The rights and duties of joint managing conservators is not at issue.

Furthermore, because neither party pleaded for joint managing

conservatorship, the rights and duties of joint managing conservators are not at issue

for the Court to change from the previous order. In P.A. C, the father asked to be

named the sole managing conservator, which encompasses certain exclusive rights

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and duties. Id. at 215–16. Thus, the court could award those exclusive rights duties

encompassed within the sole managing conservator to father. Id.

Here, neither party requested joint managing conservatorship. Neither party

requested a change to any specific joint managing conservator rights and duties. And

no jury question was presented regarding joint managing conservatorship. The jury

answered the first question presented regarding the replacement of joint managing

conservatorship to sole managing conservatorship and affirmed that a sole managing

conservator should be appointed, but that it not be JEFFREY YOUNGER. But the

Court contravened the jury’s answer by keeping the parties joint managing

conservators and modifying the rights and duties of the parties as joint managing

conservators. Joint managing conservatorship was not at issue and the rights and

duties of joint managing conservators was not at issue. See id. Accordingly, the

Court should change its ruling to conform to the jury’s verdict.

5. Conclusion and Prayer.

The jury answered that there should be a sole managing conservator and that

JEFFREY YOUNGER should not be the sole managing conservator. Thus, it is this

Court’s duty to harmonize the answers, and only one option exists, ANNE

GEORGULAS should be named the sole managing conservator. This Court cannot

contravene the jury’s answer that there should be a sole managing conservator. And

neither party pleaded for joint managing conservatorship.

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 Furthermore, JEFFREY YOUNGER did not plead for joint managing

conservatorship, did not request a jury question naming the parties joint managing

conservators, and did not object that no such question was asked. Accordingly, he

has waived the right to complain about trying the issue of joint managing

conservatorship. Therefore, the Court cannot keep the parties as joint managing

conservators.

Additionally, neither party has put at issue the previous order’s rights and

duties. Thus, the Court has no authority to modify those rights and duties.

Accordingly, ANNE GEORGULAS prays the Court will conform its orders

to the jury’s answers.

Respectfully submitted,

KOONSFULLER, P.C.
Granite Place at Town Square
550 Reserve Street, Suite 450
Southlake, Texas 76092
817-481-2710 (telephone)
817-481-2637 (facsimile)

By: /s/ Jessica Hall Janicek

JESSICA HALL JANICEK
State Bar No. 24069862
jjanicek@koonsfuller.com
LAURA S. HAYES
State Bar No. 24041146
lhayes@koonsfuller.com
ATTORNEYS FOR PETITIONER,
ANNE GEORGULAS

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 CERTIFICATE OF SERVICE

I certify that a true copy of the above was served on each attorney of record

or party in accordance with the TEXAS RULES OF CIVIL PROCEDURE on November 5,

2019.

/s/ Jessica Hall Janicek

JESSICA HALL JANICEK

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