Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

In re W.A.B.

Court of Appeals of Texas, Fourteenth District

May 21, 2019

IN THE INTEREST OF W.A.B., III, A CHILD

          On Appeal from the 311th District Court Harris County, Texas Trial Court Cause No. 2013-04887

          Panel consists of Justices Jewell and Bourliot and Former Justice Michael Massengale, sitting by assignment.

          MEMORANDUM OPINION

          KEVIN JEWELL, JUSTICE

         This is an appeal from a default judgment in a suit to modify a parent-child relationship. In a single issue, appellant ("Father") argues that the trial court erred by denying Father's motion for continuance of the trial setting based on his attorney's unavailability. Because we conclude that Father failed to preserve his complaint for appellate review and that, in any event, the trial court did not abuse its discretion under the circumstances of this case, we affirm the trial court's judgment.

         Background

         A Harris County family district court signed a final decree of divorce on January 31, 2014, dissolving the marriage between Father and Mother. The court also signed an agreed order in a suit to modify the parent-child relationship ("SAPCR") pertaining to Mother's and Father's son, W.A.B., III. Several years later, Father filed a petition to modify the SAPCR order, alleging a material and substantial change in W.A.B.'s circumstances. Mother filed a counterpetition, seeking a modification of issues regarding, inter alia, medical treatment, education, and possession of the child. Mother also sought an increase in child support payments.

         The Harris County district court set this case for a bench trial at 9:00 a.m. on Monday, October 16, 2017, and provided notice to all counsel.

         On Thursday, October 12, 2017, at approximately 10:00 a.m., Father's counsel received an email from the court manager for the 10th Judicial District Court of Galveston County calling Father's counsel to trial at 9:00 a.m. on Monday October 16, 2017, in Galveston-the same date and time as the SAPCR trial setting in Harris County. The Galveston case was a felony criminal prosecution.

         Father filed a motion for continuance in the Harris County District Clerk's office at 8:54 p.m. on Sunday, October 15, 2017. Father sought a continuance of the October 16, 2017 trial setting in the SAPCR proceeding due to the conflicting felony criminal trial setting in Galveston County. The motion for continuance was verified and attached a copy of the email from the Galveston County district court manager advising counsel of his obligation to appear for trial on October 16, 2017, at 9:00 a.m. The motion for continuance also alleged that counsel's unavailability was not the result of Father's own fault or negligence, "as prior to Wednesday, October 11, 2017, [counsel] believed that the [criminal case] would not be reached for trial until the following week at the earliest." The record does not show that Father attempted to obtain a hearing date and time for the Harris County district court to consider the motion for continuance.

         When the Harris County district court called the docket for this case at 9:00 a.m. on Monday, October 16, 2017, neither Father nor his counsel appeared. The court apparently recessed until the afternoon, and then proceeded "on a post-answer default basis" at 1:43 p.m. that day. Mother's counsel was present and stated on the record that she received an email from Father's counsel the prior evening advising that he would be filing a motion for continuance due to the conflicting Galveston County trial setting. Mother's counsel found it "very concerning" that Father's counsel did not provide notice of the conflict until late Sunday evening on October 15 when counsel learned of the conflict on Thursday October 12. The court made no express ruling on the motion for continuance and proceeded to hear testimony on the petitions to modify the SAPCR order. After Mother testified, the trial court orally rendered judgment granting Mother's counterpetition and awarding $6, 023.24 in attorney's fees. The trial court subsequently signed a final judgment on November 7, 2017.

         After the trial court signed the default judgment, Father filed a motion to set aside the judgment. Although the trial court set the motion for a hearing at Father's request, the court's docket sheet indicates that neither Father nor his counsel appeared, and the "matter was passed."

         Analysis

         Father appeals the default judgment. In one issue, he argues that the trial court erred in denying the motion for continuance based on his attorney's unavailability.

         A. ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.