Opinion
No. 05-11-00498-CV
02-08-2012
RANDY WHITE, Appellant v. MELINDA WHITE, Appellee
REVERSE and REMAND in part, AFFIRM in part and Opinion Filed February 8, 2012
On Appeal from the 219th Judicial District Court
Collin County, Texas
Trial Court Cause No. 219-51768-2009
MEMORANDUM OPINION
Before Justices Bridges, O'Neill, and Fillmore
Opinion By Justice Fillmore
Appellant Randy White (Randy) complains regarding the division of the marital estate in the divorce decree entered by the trial court. In his first issue, Randy contends he did not receive proper notice of hearings at which motions to withdraw, consolidate, and compel were granted, his pleadings were stricken, and a default divorce was heard and granted. In his second issue, Randy asserts the evidence is legally insufficient to support the trial court's division of the marital estate. We reverse the order granting Melinda White's (Melinda's) third motion to compel discovery and for sanctions and striking Randy's pleadings. We reverse the portion of the final divorce decree dividing the marital estate and remand the case to the trial court for a new trial on the division of the marital estate. We affirm and sever the final divorce decree in all other respects.
Background
Randy and Melinda married in 1991 and ceased living together in 2001. In April 2009, the Child Support Division of the Office of the Attorney General of Texas filed a suit affecting the parent-child relationship (SAPCR action), styled In the Interest of R.W., Jr., and M.M.W., Cause No. 219-51768-2009, 219th Judicial District Court, Collin County, Texas. Randy signed a waiver of service in the SAPCR action and appeared pro se in that matter. In a separate cause of action in which he was represented by an attorney, Randy filed a petition for divorce against Melinda, styled In the Matter of the Marriage of Randy White and Melinda J. White, Cause No. 219-54159-2009, 219th Judicial District Court, Collin County, Texas. Melinda answered Randy's divorce lawsuit and filed a counter-petition for divorce and a motion to consolidate the divorce lawsuit with the SAPCR action.
Melinda's September 25, 2009 motion to consolidate was never set for hearing or ruled upon by the trial court.
Melinda filed her first motion to compel discovery and for sanctions against Randy in July 2010. That motion to compel and for sanctions was set for hearing in August 2010, and an order was entered granting that motion. Melinda filed her second motion to compel discovery and for sanctions against Randy in September 2010. The November 2010 order on the second motion to compel discovery and for sanctions states the case was set for trial on February 14, 2011. On December 30, 2010, Melinda filed her third motion to compel discovery and for sanctions against Randy (third motion to compel) and served that motion on Randy's attorney. Melinda's third motion to compel contains a notice of hearing scheduled for January 20, 2011.
Randy appeared in the SAPCR action on January 3, 2011. A show cause hearing on a child support matter was rescheduled for January 24, 2011. On January 9, 2011, Randy's attorney filed a motion to withdraw in the divorce lawsuit. The motion to withdraw contains notice of a January 13, 2011 hearing on the motion to withdraw. The motion to withdraw also specifies the third motion to compel was set for hearing on January 13, 2011, and that hearing was the only hearing noted in a section of the motion to withdraw labeled "settings and deadlines, including discovery deadlines." By affidavit in the record, Randy states the only hearing scheduled for January 13, 2011of which he was aware related to his attorney's motion to withdraw.
There is no reference in the motion to withdraw of the February 14, 2011 trial setting. Although the motion to withdraw references a motion to compel discovery and for sanctions set for hearing on January 13, 2011, the motion to withdraw is confusing in that it states respondent, Melinda, had not served petitioner, Randy, with written discovery in the form of interrogatories, request for production, request for disclosure, or request for admissions, and the motion states that upon entry of an order allowing the withdrawal of Randy's attorney, the attorney will provide Randy originals of discovery responses and documents Randy had produced in response to discovery requests.
Neither Randy nor his attorney appeared for the January 13, 2011 hearing on the motion to withdraw. The trial court granted that motion on January 13, 2011, and requested that Melinda's attorney prepare the order granting Randy's attorney's motion to withdraw.
On January 13, 2011, Melinda filed an "agreed" motion to consolidate the SAPCR action and the divorce lawsuit. That motion contains a certification that it was served on each attorney of record or party in accordance with the Texas Rules of Civil Procedure. Despite the indication that the motion to consolidate was "agreed," it is apparent from the record that only the Attorney General agreed with Melinda to consolidate the SAPCR action with the divorce lawsuit; at the January 13, 2011 hearing of that motion, Melinda's attorney advised the trial court that the motion to consolidate had not been "presented" to Randy. The trial court signed the order consolidating the SAPCR action and the divorce lawsuit under Cause No. 219-51768-2009 on January 13, 2011.
Although Melinda's January 13, 2011 motion to consolidate incorrectly states that Randy's pleadings had been stricken, on January 13, 2011, the trial court continued the hearing on Melinda's third motion to compel to January 21, 2011, and requested that Melinda's attorney "alert" Randy and his former attorney of the resetting of that hearing.
The trial court signed an order permitting the withdrawal of Randy's attorney. That order states the "pending settings and deadlines in the case" are the January 21, 2011 hearing on Melinda's third motion to compel and the "Final Trial before the Court" on February 14, 2011. The trial court ordered that all notices in the case be delivered to Randy in person or sent to him at 209 Lake Way, Crossroads, Texas 76227 by both certified and regular first-class mail. The trial court ordered Randy's former attorney to immediately notify Randy in writing of settings or deadlines in the case of which that attorney had knowledge and Randy did not.
According to an affidavit of Melinda's attorney, she sent notice to Randy of the January 21, 2011 hearing of Melinda's third motion to compel, but not by certified mail "because of the time frame." At the January 21, 2011 hearing, Melinda's attorney explained her unsuccessful attempts to contact Randy and requested that the trial court continue the hearing on Melinda's third motion to compel to January 24, 2011, because Randy was to appear in the child support court on January 24, 2011 under penalty of contempt. Thus, on January 21, 2011, the trial court again continued the hearing on Melinda's third motion to compel to January 24, 2011.
On January 24, 2011, Randy was present without an attorney at the hearing in the child support court. According to Melinda's attorney, she verbally informed Randy to proceed to the 219th judicial district court for the hearing of Melinda's third motion to compel. Specifically, by affidavit in the record, Melinda's attorney attests she verbally informed Randy in person on January 24, 2011 that following the hearing on the child support matter, she would request the trial court at the hearing of Melinda's third motion to compel to strike Randy's pleadings and she "explained to [Randy] that this meant that [Melinda] would take a default judgment against him on that day." According to Randy's affidavit, he had not received any telephone messages from Melinda's attorney, and when he went to the courthouse on January 24, 2011, he was only aware of a setting of a hearing on the child support matter. Randy did not go to 219th judicial district court on January 24, 2011 following the hearing on the child support matter.
On January 24, 2011, the trial court granted Melinda's third motion to compel and struck Randy's pleadings. Thereafter on January 24, 2011, Melinda proceeded with a prove-up of a default divorce. The trial court granted the default divorce. The final decree of divorce was signed by the trial court on January 27, 2011. The divorce decree states that, as a result of Randy's pleadings being stricken as of the date of the divorce proceeding, Randy "wholly made default."
By letter to Randy dated February 9, 2011, Randy's former attorney confirmed he had withdrawn as Randy's attorney and advised of a final hearing in the divorce lawsuit scheduled for February 14, 2011. On February 14, 2011, Randy appeared at the trial court for the trial of the divorce lawsuit. He was informed at that time by the trial judge that a final decree of divorce had been signed on January 27, 2011.
Randy filed a motion for new trial claiming the evidence was legally and factually insufficient to support the trial court's division of the marital estate and that he had not received proper notice of the hearings on his attorney's motion to withdraw and Melinda's motion to consolidate heard on January 13, 2011, or the January 24, 2011 hearing at which Melinda's third motion to compel was heard and granted, Randy's pleadings were stricken, and a default divorce was heard and granted. Randy's motion for new trial was denied. Randy filed this appeal.
Melinda did not file a notice of appeal, and there is no cross-issue. However, we have considered Melinda's argument under her "third issue" as a response to Randy's complaints on appeal.
Hearings on Motions and Default Divorce
In his first issue, Randy contends he did not receive proper notice of the January 13, 2011 hearings on his attorney's motion to withdraw and Melinda's motion to consolidate. He further contends he did not receive proper notice of the January 24, 2011 hearings on Melinda's third motion to compel and the default divorce.
Motion to Withdraw
Although it is not clear when Randy obtained notice, Randy's affidavit indicates he was aware of the hearing scheduled for January 13, 2011 on his attorney's motion to withdraw. He stated he "did not appear in Court on that date, [sic] I did not think I could do anything to prevent my attorney from withdrawing."
Randy attested he was not aware of any hearing other than his attorney's motion to withdraw scheduled for January 13, 2011, although the Motion to Withdraw specified a motion to compel discovery and for sanctions was set on January 13, 2011.
A trial court's ruling on a motion to withdraw is reviewed under an abuse of discretion standard. Sims v. Fitzpatrick, 288 S.W.3d 93,100 (Tex. App.-Houston [1st Dist.] 2009, no pet.); Gillie v. Boulas, 65 S.W.3d 219, 221 (Tex. App.-Dallas 2001, pet. denied). The test of abuse of discretion is whether the court acted without reference to any guiding rules and principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985). In other words, the reviewing court must determine whether the trial court's action was arbitrary or unreasonable. See id. at 242. Here, by affidavit Randy stated he had notice of the January 13, 2011 hearing on the motion to withdraw. We conclude the trial court did not abuse its discretion in granting the motion to withdraw.
Motion to Consolidate
We are persuaded Randy did not receive proper notice of the January 13, 2011 hearing of Melinda's motion to consolidate. On January 13, 2011, Melinda filed an "agreed" motion to consolidate the SAPCR action and the divorce lawsuit. Although that motion to consolidate contains a certification that it was served on each attorney of record or party in accordance with the Texas Rules of Civil Procedure, at the hearing conducted on January 13, 2011 of that motion, Melinda's attorney advised the trial court that the motion to consolidate had not been "presented" to Randy. The trial court signed the order consolidating the SAPCR action and the divorce lawsuit under Cause No. 219-51768-2009 on January 13, 2011.
We review a consolidation order for abuse of discretion. Allison v. Ark. La. Gas Co., 624 S.W.2d 566, 568 (Tex. 1981). The motion to consolidate was filed, heard, and granted on January 13, 2011. Randy received no notice of the filing of the motion or the hearing conducted on that motion. According to Randy, the motion to consolidate "served as a catalyst, ambushing [him] when he appeared for the hearing in the Attorney General's court on January 24, 2011, and allowing [Melinda's attorney] to take the default judgment." We disagree that the motion to consolidate resulted in the default divorce granted on January 24, 2011. Moreover, Randy has not requested relief from this Court regarding the order granting consolidation. Therefore, we decline to reverse the trial court's order granting the motion to consolidate. See Tex. R. App. P. 44.1(a)(1) (judgment will not be reversed on appeal on ground trial court made an error of law unless court of appeals concludes the error complained of probably caused the rendition of an improper judgment).
Third Motion to Compel Discovery and for Sanctions
Randy contends he did not receive proper notice of the January 24, 2011 hearing of Melinda's third motion to compel. He requests that this Court reverse the trial court's order granting the third motion to compel and striking Randy's pleadings.
We agree Randy did not receive proper notice of the January 24, 2011 hearing of Melinda's third motion to compel. In December 2010, Melinda filed the third motion to compel and served the motion on Randy's attorney prior to his withdrawal. That motion contains a notice indicating the hearing was scheduled for January 20, 2011. In his motion to withdraw, Randy's attorney specified that the "Motion to Compel Discovery and for Sanctions" was set on January 13, 2011.
On January 13, 2011, the trial court continued the hearing on Melinda's third motion to compel to Friday, January 21, 2011 and requested that Melinda's attorney "alert" Randy and his former attorney of the resetting of that hearing. Further, in the order granting withdrawal of Randy's attorney, the trial court ordered that all notices in the case be delivered to Randy in person or sent to him by both certified and regular first-class mail, and ordered Randy's former attorney to immediately notify Randy in writing of settings or deadlines of which that attorney had knowledge and Randy did not. According to an affidavit of Melinda's attorney, she sent notice to Randy of the January 21, 2011 hearing of Melinda's third motion to compel, but not by certified mail "because of the time frame." At the January 21, 2011 hearing, Melinda's attorney explained her unsuccessful attempts to contact Randy and requested that the trial court continue the hearing on Melinda's third motion to compel to January 24, 2011, because Randy was to appear in the child support court on January 24, 2011 under penalty of contempt. Thus, on January 21, 2011, the trial court again continued the hearing on Melinda's third motion to compel to January 24, 2011.
On January 24, 2011, Randy was present without an attorney at the hearing in the child support court. Melinda's attorney attests in her affidavit that on that date she verbally informed Randy in person that he should proceed to the trial court for the hearing of Melinda's third motion to compel. Melinda's attorney states she verbally informed Randy that at the hearing of Melinda's third motion to compel, she would request that the trial court strike Randy's pleadings. She further states she "explained to [Randy] that this meant that [Melinda] would take a default judgment against him on that day." When he went to the courthouse on January 24, 2011, Randy was only aware of a hearing scheduled on the child support matter.
Under the rules of civil procedure, a party is generally entitled to three days' notice of a hearing if served in person, by agent, or by courier, or six days' notice if served by certified mail or telephonic document transfer. See Tex. R. Civ. P. 21, 21a; Tex. Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 229 (Tex. 2004) (noting three-day notice period in rule 21); In re C.S., 264 S.W.3d 864, 871 (Tex. App.-Waco 2008, no pet.). Nothing in this record supports an argument that Randy received proper notice of the January 24, 2011 hearing on Melinda's third motion to compel. There is no record evidence that Randy was provided written notice of the January 24, 2011 hearing on Melinda's third motion to compel. At best, Randy received verbal communication from Melinda's attorney on January 24, 2011 that a hearing on Melinda's third motion to compel was to take place that day. Verbal communication that a hearing was to take place that day did not constitute proper notice under the rules of civil procedure. See Tex. R. Civ. P. 215.3 (if court finds party is abusing discovery process in seeking, making or resisting discovery, court in which the action is pending may, "after notice and hearing," impose appropriate sanction under rule of civil procedure 215.2(b)); Plano Sav. & Loan Ass'n v. Slavin, 721 S.W.2d 282, 284 (Tex. 1986) (orig. proceeding) (op. on reh'g) (where party did not learn of sanctions hearing until day before hearing when he received a note from his former attorney, he "had inadequate notice of sanctions hearing, which he is required to have"). The standard of review of a trial court's discovery sanction is whether the court abused its discretion. Bodnow Corp. v. City of Hondo, 721 S.W.2d 839, 840 (Tex. 1986). Randy did not learn of the hearing on the third motion to compel until he was verbally advised by Melinda's attorney on the day of the hearing. This was inadequate notice, and the trial court abused its discretion in granting the third motion to compel and in entering the sanction of striking Randy's pleadings on that day. See Slavin, 721 S.W.2d at 284. We resolve in Randy's favor his contention that he did not receive proper notice of the hearing on Melinda's third motion to compel. Accordingly, we reverse the trial court's order granting Melinda's third motion to compel and striking Randy's pleadings.
The record does not support an argument that the trial court shortened the notice period under rule of civil procedure 21 to authorize notice by verbal communication on the day of the hearing. See Tex. R. Civ. P. 21.
Default Divorce
On January 24, 2011, after granting Melinda's third motion to compel and striking Randy's pleadings, the trial court granted the default divorce. The final decree of divorce states that, as a result of Randy's pleadings being stricken as of the date of the divorce proceeding, Randy "wholly made default." Randy contends he did not receive proper notice of the default divorce proceeding conducted following the trial court's granting Melinda's third motion to compel and striking Randy's pleadings. He argues the trial court erred in conducting the default divorce hearing without giving him notice of that hearing.
The only information Randy had regarding a January 24, 2011 hearing in the trial court was a verbal communication from Melinda's attorney that a hearing was scheduled that day on Melinda's third motion to compel and Melinda's attorney's "explanation" to Randy that this "meant that [Melinda] would take a default judgment against him on that day." We have concluded the verbal communication was not proper notice to Randy.
Accordingly, Randy was denied due process when the trial court conducted a default divorce hearing without giving him proper notice. "Once a defendant has made an appearance in a case, he is entitled to notice of a trial setting as a matter of due process." Murphree v. Ziegelmair, 937 S.W.2d 493, 495 (Tex. App.-Houston [1st Dist.] 1995, no writ) (citing LBL Oil Co. v. Int'l Power Serv., Inc., 777 S.W.2d 390, 390-91 (Tex. 1989)). As further stated in Murphree,
In LBL Oil Co., the supreme court noted that a default hearing was, effectively, a trial setting because it was dispositive of the case. Therefore, it was a denial of due process to grant a default judgment against a defendant who did not receive notice of a motion for default judgment or a hearing on the motion.Murphree, 937 S.W.2d at 495 (citing LBL Oil Co., 777 S.W.2d at 390-91). See also In re Marriage of Runberg, 159 S.W.3d 194, 198, 199 (Tex. App.-Amarillo 2005, no pet.) (husband's appearance in divorce suit entitled him to notice of final hearing under due process). Randy was entitled to sufficient notice of the hearing at which the trial court would hear evidence regarding the divorce and the division of the community estate. See Roa v. Roa, 970 S.W.2d 163, 165 (Tex. App.-Fort Worth 1998, no pet.).
In this case, we are not addressing a situation in which a party has not made an appearance in a divorce lawsuit.
We conclude the rendering of the default divorce decree was in violation of Randy's due process rights. We resolve in his favor Randy's first-issue contention that he did not receive proper notice of the default divorce proceeding. Randy seeks reversal of only the property division portion of the divorce decree. Accordingly, we reverse only the portion of the trial court's final decree of divorce dividing the marital estate, and remand this case to the trial court for a new trial on the division of the marital estate. We affirm and sever the remainder of the final divorce decree. See Smith v. Smith, 22 S.W.3d 140, 153 n.10 (Tex. App.-Houston [14th Dist.] 2000, no pet.) (where appellant had not challenged trial court's determinations as to conservatorship of minor children and child support, appellate court could affirm and sever the issues of the divorce, conservatorship, and support, and remand only for a new property division).
On May 21, 2009, an Order Enforcing Child Support Obligation and Modifying Support that covers health care support, possession of Randy and Melinda's children, and conservatorship was approved and signed by Randy, Melinda, Melinda's attorney, and a representative of the Attorney General's office. On May 21, 2009, that order was signed by an associate judge. That order was approved and adopted in the final divorce decree. We do not disturb those portions of the divorce decree.
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Division of Marital Estate
In his second issue, Randy asserts the evidence is legally insufficient to support the trial court's division of the marital estate. As discussed above in connection with Randy's first issue, we have concluded the trial court abused its discretion in granting the default divorce, and we are reversing the property division portion of the divorce decree and remanding this case to the trial court for a new trial on the division of the marital estate. Based on that resolution of Randy's first issue, we need not address Randy's second issue as to whether the evidence was legally sufficient to support the trial court's division of the marital estate. See Tex. R. App. P. 47.1.
Conclusion
We reverse the order granting Melinda White's third motion to compel discovery and for sanctions and striking Randy White's pleadings. We reverse the portion of the final divorce decree dividing the marital estate and remand the case to the trial court for a new trial on the division of the marital estate. We affirm and sever the final divorce decree in all other respects.
ROBERT M. FILLMORE
JUSTICE
110498F.P05