## Facts

- A mother filed for divorce and sought custody of three minor daughters (ages roughly two to ten).
- The custody dispute was tried to a jury in a small community where many panel members had heard rumors about the parties.
- During voir dire, a prospective juror (Mrs. Schmidt), acquainted with the family and from the same church, stated she was “against drinking in any manner, any kind.”
- When informed that evidence would show the mother drank socially and had once or twice consumed alcohol to excess, Mrs. Schmidt indicated this would affect her judgment and she would hold it against the mother in deciding custody.
- After further, leading questioning, Mrs. Schmidt stated she could decide the case on the evidence; the trial court denied the mother’s challenge for cause and Mrs. Schmidt served on the jury.
- After the verdict, the mother offered an affidavit indicating Mrs. Schmidt had said before being sworn that she admired the father, felt sorry for him, and claimed the mother had “run out on” him before.
- The mother moved for mistrial and for a new trial based on juror bias; the trial court refused to hear evidence supporting the affidavit.
- The mother also complained she was denied the right to open and close despite bearing the burden on her fitness for custody.
- Although the parties agreed the jury would decide only custody and the court would decide divorce, the trial court refused to hear the mother’s proffered divorce witnesses.

## Issues

1. Whether the trial court erred by refusing to disqualify a juror for cause where voir dire and extrajudicial statements indicated bias or prejudice against the mother.
2. Whether the trial court erred by denying the mother the right to open and close on custody when she bore the burden of proof.
3. Whether the trial court erred by refusing to hear the mother’s witnesses on the divorce issue reserved for the court.

## Decision

- The appellate court reversed and remanded for a new trial.
- The court held the juror was disqualified as a matter of law for bias/prejudice; the trial court abused its discretion in overruling the challenge for cause and in denying mistrial/new trial without hearing supporting evidence.
- The court held the mother was entitled to open and close on custody because she carried the burden of proof; denial was error.
- The court held it was error to refuse to hear the mother’s divorce evidence after the parties agreed the divorce issue would be decided by the court.

## Legal Principles

- A juror with bias or prejudice for or against a party is disqualified; when the record shows such bias, disqualification is required as a matter of law.
- “Bias” involves an inclination toward one side; “prejudice” involves prejudgment; either warrants disqualification when it supports a natural inference of partiality.
- A juror’s later, conclusory assertion of impartiality, especially elicited through leading questions, may not cure earlier admissions showing a fixed attitude tied to a key disputed issue.
- A party bearing the burden of proof is generally entitled to open and close the presentation/argument; improper denial can constitute reversible error.
- When the court reserves an issue for its own determination, it must receive relevant proffered evidence necessary to adjudicate that issue.

## Conclusion

The custody and related rulings were reversed and remanded because the trial court seated a juror whose voir dire and alleged pretrial comments showed disqualifying bias, denied the burdened party the right to open and close on custody, and improperly refused to hear the mother’s evidence on the divorce issue reserved for the court.


Flowers v. Flowers, 397 S.W.2d 121 (Tex. Civ. App. 1965)