in the Matter of the Marriage of Kathryn Koenig Taylor and Don Eugene Taylor

NO. 07-02-0051-CV

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL E

OCTOBER 3, 2002



______________________________



IN THE MATTER OF THE MARRIAGE OF

KATHRYN KOENIG TAYLOR AND DON EUGENE TAYLOR



_________________________________

FROM THE 47TH DISTRICT COURT OF RANDALL COUNTY;

NO. 47,595-A; HONORABLE DAVID L. GLEASON, JUDGE

_______________________________

Before REAVIS and JOHNSON, JJ, and BOYD, SJ. (1)

ON MOTION FOR REHEARING

In seeking a rehearing, appellant Kathryn Koenig Taylor presents two issues in which she contends we utilized the wrong test in determining the factual sufficiency of the evidence to support the trial court's finding (1) that the New York Life Insurance policy insuring appellee Don Eugene Taylor's life had a $30,000 separate property interest and (2) that the community estate had a $15,106 interest in the separate property of appellant.

In the recent seminal cases of In re C.H., No. 00-0552, slip op., WL 1903109 at 1 (Tex. July 3, 2002), and In re N.K., No. 01-1070, slip op., 2002 WL 1432813 at 1 (Tex. July 3, 2002), the court considered the test to be applied by appellate courts in termination cases in evaluating whether the trial evidence was sufficient to meet the clear and convincing evidence test. In settling a difference which had theretofore existed between the Courts of Appeals, the court explicated that in deciding the factual sufficiency of findings that must be supported by clear and convincing evidence, the test is whether the evidence is such that a factfinder could reasonably form a firm belief or conviction about the truth of the allegations sought to be established.

We agree that test is also applicable in divorce cases such as this one. The relevant evidence in this case was recited in detail in our original opinion, and it is not necessary to reiterate it here. Suffice it to say that we find the evidence was sufficient for the trial court, as factfinder in this case, to reasonably form a firm belief or conviction that the property division made by it was justified.

Accordingly, appellant's motion for rehearing must be, and it is hereby, overruled.



John T. Boyd

Senior Justice



Do not publish.

1. John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by assignment.

ut only shows that there has been a failure to establish in the record the qualifications of the expert. Before we commence our analysis, we first set out the applicable standard of review.

Standard of Review

A writ of mandamus will only issue to correct a clear abuse of discretion or violation of a duty imposed by law when there is no adequate remedy by law. Walker v. Packer, 827 S.W.2d 833, 839 (Tex. 1992) (orig. proceeding). Also the relator has the burden to present the appellate court with a record sufficient to establish the right to mandamus. Id. at 837. Delay, inconvenience, or expense of an appeal does not constitute the absence of an adequate remedy by appeal, but instead

the relator must establish the effective denial of a reasonable opportunity to develop the merits of his or her case, so that the trial would be a waste of judicial resources. . . . Similarly, a denial of discovery going to the heart of a party's case may render the appellate remedy inadequate.



Walker, 827 S.W.2d at 843.

We commence our analysis by focusing our attention on the rule that mandamus is available only if relators have demonstrated that they have no adequate remedy by appeal. By their motion to reinstate and to reconsider order, among other things, relators contended:

2. [t]he exclusion of Dr. Townsend as an expert witness is not the result of an affirmative showing that he is disqualified to testify as an expert; rather the record before the Court was that there has not been an affirmative showing of a proper predicate for his qualifying as an expert in this case.

3. The purpose of this second deposition is to establish that indeed there existed . . . sufficient legal and factual basis for Dr. Townsend to testify as an expert for the plaintiff . . .



but that his expert status was denied because of the failure of the record to affirmatively demonstrate a proper scientific basis for his opinions or that the appropriate questions were not asked, and that the reason he did not so testify in his original video deposition was that he was not asked.

By their petition here, relators present similar arguments, asserting:

  • •Dr. Townsend's status as an expert was denied because of a failure to affirmatively demonstrate a proper scientific basis for his opinions. That failure was not the result of affirmatively demonstrating the lack of such basis; it was the result of a failure to ask the proper questions to elicit such proper scientific basis.
  • •Dr. Townsend was never asked the medical or scientific standard upon which he based his opinions. Had he been asked, he would have testified that he based his opinions on "reasonable medical probability."
  • •The reason he did not so testify in his original deposition was that he was not asked.


Relators argue that when the "qualification barrier" has been met, Dr. Townsend may testify as to his opinion concerning the diagnosis, causation, etc. Then, they conclude that to block the deposition was an abuse of discretion by the trial court.

The two orders of the trial court in the underlying proceeding do not preclude relators' exercise of other means of discovery. See, e.g., Tex. R. Civ. P. 199.1(b), 200. Accordingly, relators have failed to establish the effective denial of a reasonable opportunity to develop the merits of their case. Therefore, they have not met the second test of Walker, 827 S.W.2d at 843, and have not shown a lack of an adequate remedy by law.

Accordingly, relators' petition for writ of mandamus is denied.



Per Curiam



Johnson, C.J., not participating.