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.

Abrigo v. Ginez

Court of Appeals of Texas, Fourteenth District

June 25, 2019

YOLANDA GINEZ ABRIGO, Appellant
v.
JORGE GINEZ, Appellee

          On Appeal from the 98th District Court Travis County, Texas Trial Court Cause No. D-1-FM-17-006021

          Panel consists of Justices Christopher, Jewell, and Bourliot.

          OPINION

          KEVIN JEWELL JUSTICE.

         Yolanda 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.[1]

         Background

         Jorge 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.

         Within 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.

         The 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 Jorge's counsel.[2]

         The 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, [3] the trial court retained plenary power to grant a new trial until March 13.

         On 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.

         Yolanda appeals.

         Analysis

         Yolanda 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.

         In 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 ...


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.