Appeal from the 98th District Court Travis County, Texas
Trial Court Cause No. D-1-FM-17-006021
consists of Justices Christopher, Jewell, and Bourliot.
Ginez Abrigo appeals the trial court's order granting her
motion for new trial conditioned on payment of appellee's
attorney's fees. In one issue, Yolanda contends the trial
court abused its discretion in conditioning the grant of a
new trial on paying the opposing side's attorney's
fees because Yolanda is indigent and filed a statement of
inability to pay costs under Texas Rule of Civil Procedure
145. Because we conclude the order is an abuse of discretion,
we reverse the judgment and remand for further proceedings
consistent with this opinion.
Ginez filed a petition for divorce on September 28, 2017, and
served his wife, Yolanda, with citation on November 6.
Yolanda did not file an answer before it was due at 10:00
a.m. on Monday, November 27. That day, the trial court heard
the case with only Jorge in attendance and orally granted
Jorge's petition. Yolanda filed her answer the afternoon
of November 27, shortly after the court orally granted
Jorge's petition. The answer was signed by Yolanda's
retained counsel. The next day, November 28, the court signed
a default final divorce decree, dissolving Jorge's and
Yolanda's marriage and declaring other relief.
thirty days of the judgment date, Yolanda filed a motion for
new trial, urging the court to vacate the judgment because,
though she had been unable to retain counsel until the
afternoon of November 27, she filed an answer before the
court signed the default judgment. The motion for new trial
was signed by Yolanda's retained counsel.
following month, Yolanda's counsel filed a motion to
withdraw. The court heard the motion to withdraw on January
9, 2018, and signed an order granting the motion that day.
The court also heard Yolanda's motion for new trial on
January 9. According to Yolanda, during the hearing, the
trial judge orally granted a new trial conditioned on
Yolanda's payment of $4, 662 in attorney's fees to
record shows no further activity until March 1, 2018, when
Yolanda filed an "affidavit of inability to pay
costs," in which she averred that she is indigent and
cannot pay court costs. The next day, Yolanda filed a
"motion to set aside default judgment or reconsider
conditions of order granting new trial." This motion was
signed by new counsel, the Austin Community Law Center.
Yolanda argued that the court's January 9 oral order
granting a new trial conditioned on payment of attorney's
fees was an abuse of discretion because she is indigent.
Although the motion is of no effect as a motion for new trial
or motion to modify because it was filed outside thirty days
following the judgment date,  the trial court retained plenary
power to grant a new trial until March 13.
March 8, the court held a hearing and signed an "order
on entry of final judgment." The order reduced to
writing the court's previous oral ruling granting a new
trial on the condition that Yolanda pay opposing
counsel's attorney's fees. Our record does not show
that any contest was filed to Yolanda's affidavit of
inability to pay costs before the court signed the March 8
order. Jorge filed a contest on March 12, but the record
reveals no action on the contest.
asserts that, if a party has filed a Statement of Inability
to Afford Payment of Court Costs pursuant to Texas Rule of
Civil Procedure 145, a trial court may not condition a new
trial on the payment of the opposing party's
attorney's fees unless the court first holds an oral
evidentiary hearing with proper notice and issues a detailed
written order finding that the party is capable of paying
those fees. Yolanda filed an affidavit of inability to pay
costs, which she contends qualifies as a rule 145 statement,
and it was not overruled by the trial court. Therefore,
Yolanda argues, it was an abuse of discretion to condition a
new trial on payment of attorney's fees.
response, Jorge argues that (1) Yolanda's affidavit was
deficient in form, and (2) the timing of Yolanda's
statement did not afford Jorge sufficient time to assert a
contest before the March 8 hearing. Therefore, according to
Jorge, the trial court did not abuse its discretion in ruling
that a new trial would be conditioned on Yolanda "making
[Jorge] whole for harm ...