Appeal from the 311th District Court Harris County, Texas
Trial Court Cause No. 2013-04887
consists of Justices Jewell and Bourliot and Former Justice
Michael Massengale, sitting by assignment.
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.
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.
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.
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.
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
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.
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."
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.