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In re V.I.P.

Court of Appeals of Texas, First District

June 27, 2019

IN THE INTEREST OF V.I.P., A CHILD

          On Appeal from the 245th District Court Harris County, Texas Trial Court Case No. 2008-24403

          Panel consists of Justices Lloyd, Landau, and Countiss.

          MEMORANDUM OPINION

          Russell Lloyd Justice.

         Mother is appealing an order modifying the parent-child relationship. In a single issue, Mother argues that the trial court abused its discretion by denying her motion for continuance due to absence of counsel. Finding no reversible error, we affirm the trial court's order.

         Background

         Mother and Father, who were divorced in 2011, were appointed as joint managing conservators for their daughter, V.I.P. In December 2016, Mother filed a petition to modify the divorce decree in which she sought to change the pick-up and drop-off point and increase the amount of child support Father was required to pay. The case was set for trial on August 14, 2017. Father filed a counter-petition to modify on August 25, 2017, in which he asked the court to appoint him as V.I.P.'s joint managing conservator with the exclusive right to designate her primary residence.

         On November 3, 2017, the trial court granted Mother's counsel's motion to withdraw. The order states that it was an "agreed motion" and that Mother consented to the motion. The trial court reset trial for January 22, 2018. The parties later agreed to reset the trial date to March 5, 2018.

         According to Father, Mother filed a motion for continuance on February 19, 2018, but she did not serve the unverified motion on Father's counsel or set the motion for a hearing. Father also acknowledges that Mother orally requested a continuance when the parties appeared for trial on March 5, 2018. The docket sheet reflects the trial court denied a motion for continuance on March 5, 2018, and ordered the case to be set during the court's two-week docket. The March 5th proceeding, however, was not transcribed, and no motion for continuance is included in the clerk's record.[1]

         On March 8, 2018, Mother filed a statement of inability to afford payment of court costs. She attached a letter from Lone Star Legal Aid, dated January 24, 2018, declining to represent her and advising her that they would not be attending her trial in March.

         The case was tried to the bench on March 20, 2018. Mother, who appeared pro se, did not request a continuance or challenge the trial court's decision to allow her prior counsel to withdraw in November. At one point during trial, Mother stated: "I'm not an attorney, and I'm trying to represent myself the best I can because I was not--I didn't have the means to hire an attorney." The trial court responded:

Ma'am, you had an attorney, and then they withdrew. I don't know why --it was an agreed withdraw . . . . He withdrew in November. It is now mid-March. So the idea that you were unable to obtain counsel is somewhat suspect. I did see that you went to Legal Aid, and I don't know because I'm not familiar with that. You filed an affidavit of indigency under oath, saying that effectively you do not have the means to hire a lawyer; but you have told me that effectively all of your bills are paid for by your husband.

         After both sides rested, the trial court recessed the trial and took the matter under advisement.

         Mother retained counsel who made an appearance on March 26, 2018. On April 4, 2018, the trial court held a hearing on Father's motion to present additional evidence. Mother's attorney was present.

         On May 30, 2018, the trial court signed an order naming Father as V.I.P.'s joint managing conservator with the exclusive right to designate her primary residence, awarding Mother visitation, and ordering Mother to pay child support to Father. The trial court also ordered Mother ...


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