Opinion
13-22-00430-CV
08-31-2023
IN THE INTEREST OF G.K.C. AND M.R.C., CHILDREN
On appeal from the 214th District Court of Nueces County, Texas.
Before Chief Justice Contreras and Justices Benavides and Longoria
MEMORANDUM OPINION
GINA M. BENAVIDES, JUSTICE
Pro se appellant G.J.C. (Grayson) appeals from the trial court's order modifying his child support obligation and confirming arrearages. By five issues, which we have reorganized, Grayson contends the trial court erred by not: (1) permitting a reasonable time to conduct discovery or to comply with discovery requests; (2) including certain provisions concerning the children in its order, such as custody and visitation provisions; (3) granting Grayson's requests for the appointment of counsel; (4) granting Grayson's requests to appear in person; and (5) granting Grayson's requests to appear by alternative means. We reverse and remand.
We refer to appellant by a pseudonym. See Tex. Fam. Code Ann. § 109.002(d).
I. Background
On October 5, 2017, the trial court signed an order in a suit affecting the parent-child relationship finding that Grayson owed $4,673.40 in cash medical support arrearages. The order further required him to pay $75.00 per month as current cash medical support. No additional child support was ordered, as Grayson and the children's mother were living together at the time. The trial court also did not award any rights or impose any further duties on the parents.
On May 6, 2022, the Office of the Attorney General (OAG) filed a suit to modify the prior support order and to confirm new cash medical support arrearages Grayson owed. The OAG also requested that Grayson produce certain documents in accordance with Texas Rule of Civil Procedure 196. On May 12, 2022, the trial court set the matter for a hearing by video conference.
On June 13, 2022, Grayson filed a letter requesting to appear in person at the hearing. This filing reflected that Grayson was imprisoned, although the timing of the imprisonment is unclear from the record. Grayson also requested that the court appoint counsel to represent him. On June 14, 2022, the OAG filed a notice of hearing, which provided that the hearing would take place via Zoom and listed instructions on how to join the hearing by video. The notice did not provide instructions on how to appear via telephone. Additionally, the notice provided that exhibits would need to be tendered to the court via email.
On June 21, 2022, Grayson requested court-appointed counsel, and requested a continuance so that he could confer with court-appointed counsel and appear in person for the hearing. The following day, the trial court signed an order resetting the hearing to August 24, 2022, ordering Grayson to appear at the hearing, and providing that Grayson's "failure to appear may result in the issuance of a writ for arrest." That same day, Grayson filed another document, asserting that he had not "received the equal opportunity to appear before the judge and present [his] case." He represented that he "notified the facility staff about this legal matter and requested assistance in participating in the hearing by teleconference video communication." He also "requested a telephone call to notify the clerk of court of [his] inability to participate in the hearing and of the circumstance[s] surrounding the inability." However, Grayson asserted that "[t]he facility staff stated that the facility does not assist in the set up for inmates to participate in teleconference video communication court hearings and that it does not provide legal telephone calls." Grayson then reiterated his prior requests to appear in person for any potential hearing and for court-appointed counsel.
On August 16, 2022, the OAG filed another notice of hearing that provided instructions on how to join the hearing via Zoom but did not provide instructions for telephonic appearance. Like the other notices, it also stated that exhibits were required to be tendered via email. On August 17, 2022, Grayson filed a letter summarizing his previous letters to the court as follows:
In my reply(s) I did request that the court appoint me legal[ ]representation since I cannot afford a[n] attorney. Therein I did state my opposition to a zoom video hearing from a prison facility (where I am a prisoner) without legal counsel. I have notified the 214th district court of the suppression I
receive in the prison facility in having assistance in appearing in a teleconferencing hearing with no attorney. I have no assistance in contacting any entity of the courts or child support division in this matter except via first-class U.S. mail. I have no assistance in presenting exhibits via e-mail.
Grayson concluded his letter by asking that the court acknowledge his requests and that it "pause" all proceedings.
There is no indication in the record that the trial court ever explicitly ruled on Grayson's written requests. On August 24, 2022, a final hearing proceeded without Grayson's participation. The court took "judicial notice of the service and notice to the parties," and permitted the OAG to proceed "with a default" hearing. That same day, the trial court signed a final order confirming Grayson's new medical support arrearages as $4,287.71. It ordered him to satisfy this judgment by paying $72 each month. It also required him to pay court costs. The order eliminated Grayson's current cash medical support obligation. Aside from these modifications, this order made no changes to the 2017 order. The new order also did not award any other rights, duties, or obligations to the parents, nor did it determine any periods of possession. See Tex. Fam. Code Ann. § 102.001(b) (discussing scope of suits affecting the parent-child relationship generally).
This appeal followed.
II. Preservation of Error
By his first issue, Grayson complains that he was "not allowed a reasonable time between the service of notice and deposition to respond to . . . [the OAG]'s demand for the production of documents pursuant to" Texas Rule of Civil Procedure 196.1. Grayson also appears to argue that he should have been permitted time to conduct discovery of his own. However, the record does not reflect that Grayson presented his concerns about the discovery process to the trial court for its review. Therefore, these complaints have not been preserved for our review. See Tex. R. App. P. 33.1(a) (providing that to preserve a complaint for appellate review, the record must show that "the complaint was made to the trial court by a timely request, objection, or motion"); Bushell v. Dean, 803 S.W.2d 711, 712 (Tex. 1991) (per curiam).
By his second issue, Grayson argues that he should have been afforded the opportunity to establish "joint conservatorship, . . . establish [g]eographical [r]estrictions, establish temporary visitation orders for telephone calls and visits at [his] expense," among other things. However, Grayson filed no pleadings below requesting any of these provisions. Because the record does not reflect that Grayson sought an order containing these provisions, we conclude that this issue has also not been preserved for review. See Tex. R. App. P. 33.1(a).
Therefore, we overrule the first two issues Grayson raises on appeal.
III. Appointment of Counsel
By his third issue, Grayson contends that the trial court erred by refusing his requests to appoint counsel.
In most civil cases, a trial court has discretion to appoint counsel to represent an indigent litigant. See Tex. Gov't Code Ann. § 24.016 ("A district judge may appoint counsel to attend to the cause of a party who makes an affidavit that he is too poor to employ counsel to attend to the cause."). The supreme court has suggested that "in some exceptional cases," a court may abuse its discretion if it does not appoint counsel when "the public and private interests at stake are such that the administration of justice may best be served by appointing a lawyer to represent an indigent civil litigant." Travelers Indem. Co. of Conn. v. Mayfield, 923 S.W.2d 590, 594 (Tex. 1996). The supreme court has yet to identify what such an "exceptional case" might entail but has noted that "[o]nly by evaluating the unique circumstances of a given civil case could a court ever determine that it has no reasonable alternative but to appoint counsel." See Gibson v. Tolbert, 102 S.W.3d 710, 713 (Tex. 2003).
Grayson does not point to any provision of the family code that requires a trial court to appoint counsel for an indigent litigant in a proceeding that solely involves the confirmation of arrearages and the modification of a child support order, and we are unable to find any such provision. See In re W.M., 587 S.W.3d 828, 830 (Tex. App.-El Paso 2019, no pet.) (concluding that the trial court did not err by refusing to appoint counsel for an incarcerated father "given that this case is a [child support] modification case and does not involve circumstances that would trigger statutory rights to counsel, such as enforcement of the arrearage through civil or criminal contempt"). Grayson argues that he alerted the trial court that he would not be able to participate in the Zoom hearing absent legal representation, and he also generally refers to the importance of the parent-child relationship. Child support proceedings involving pro se litigants, however, are not uncommon. See Gibson, 102 S.W.3d at 713 (considering the frequency of the type of underlying proceeding when determining that the trial court did not abuse its discretion by refusing to appoint counsel); In re W.M., 587 S.W.3d at 830. And as discussed above, the trial court's order did not affect any of Grayson's rights as a parent. Although we agree with Grayson that the failure to appoint counsel was an obstacle to his ability to meaningfully participate in the proceedings, as we will discuss further below, we do not agree that the trial court had "no reasonable alternative but to appoint counsel" in order to facilitate Grayson's participation. See Gibson, 102 S.W.3d at 713. We therefore conclude that this is not the "exceptional case" suggested by the Supreme Court of Texas in which the trial court may abuse its discretion by failing to appoint counsel. See Mayfield, 923 S.W.2d at 594; see also In re W.M., 587 S.W.3d at 830.
Accordingly, we overrule Grayson's third issue.
IV. Participation in Hearing
By his fourth and fifth issues, Grayson argues that the manner in which the trial court conducted its hearing was fundamentally unfair. Specifically, Grayson argues that the trial court should have either allowed him to appear in person, or it should have allowed him to participate in the proceedings "by another alternative method."
A. Personal Appearance
Grayson argues that "[t]he trial court did not render any good cause to not require appellant to appear [at the] hearing for testimony and to present documents." "[A]n inmate does not have an absolute right to appear in person in every court proceeding." In re Z.L.T., 124 S.W.3d 163, 165 (Tex. 2003). "Instead, the inmate's right of access to the courts must be weighed against the protection of our correctional system's integrity." Id. In balancing these factors, courts consider a variety of factors, including: (1) the cost and inconvenience of securing the prisoner's attendance; (2) whether the prisoner's claims are substantial; (3) whether the matter's resolution can be reasonably delayed until the prisoner's release; (4) whether the prisoner can and will offer admissible, noncumulative testimony that cannot be effectively presented by deposition, telephone, or some other means; (5) whether the prisoner's presence will aid the factfinder in assessing his demeanor or credibility; (6) whether the trial is to the court or a jury; and (7) the prisoner's likelihood of success on the merits. Id. at 165-66.
In any event, "the prisoner requesting a bench warrant must justify the need for his presence." Id. at 166. Therefore, the onus is on the prisoner to include in his requests all the necessary information by which a trial court may effectively balance these factors. Id. Just as in In re Z.L.T., Grayson's request to appear in person "included no information by which the court could assess the necessity of his appearance." See id. We conclude that because Grayson did not provide sufficient information to aid the trial court in determining the necessity of his personal appearance, the trial court did not abuse its discretion in implicitly denying his request for a bench warrant. See id. (concluding that, because the incarcerated litigant "failed to provide factual information showing why his interest in appearing outweighed the impact on the correctional system[,] . . . the trial court did not abuse its discretion by overruling his request for a bench warrant"). We overrule Grayson's fourth issue.
B. Appearance via Alternative Means
Nonetheless, "[a]ll litigants who are forced to settle disputes through the judicial process have a fundamental right under the federal constitution to be heard at a meaningful time in a meaningful manner." Larson v. Giesenschlag, 368 S.W.3d 792, 796- 97 (Tex. App.-Austin 2012, no pet.). "A prisoner's right of access 'entails not so much his personal appearance as his opportunity to present evidence or contradict the evidence of the opposing party.'" In re L. N.C. , 573 S.W.3d 309, 324 (Tex. App.-Houston [14th Dist.] 2019, pet. denied). Thus, "if a pro se inmate is not allowed to participate in a proceeding in person, a trial court should nevertheless afford the inmate an opportunity to proceed by affidavit deposition, telephone, or other effective means." Larson, 368 S.W.3d at 797; see In re J. A. R., 658 S.W.3d 921, 928 (Tex. App.-El Paso 2023, pet. denied). "When a trial court's failure to act on an inmate's request for participation, in person or by other means, effectively bars the inmate from presenting his case, the trial court abuses its discretion." Larson, 368 S.W.3d at 796.
The OAG represents that Grayson "never requested to appear in court by a different alternative method." We first note that a request for the appointment of counsel is inherently a request to appear via alternative means. See Boulden v. Boulden, 133 S.W.3d 884, 887 (Tex. App.-Dallas 2004, no pet.); see also Tex. R. Civ. P. 7 ("Any party to a suit may appear and prosecute or defend his rights therein, either in person or by an attorney of the court."). Further, it is apparent from the context of Grayson's filings with the court, which included numerous requests to allow him to present his case, that Grayson sought to participate in the proceedings by some viable manner. See Larson, 368 S.W.3d at 798.
In his letter filed with the court on August 17, 2022, Grayson explained that he had "no assistance in contacting any entity of the courts or child support division in this matter except via first-class U.S. mail." Construing this pleading liberally, we conclude that Grayson requested that he be permitted to participate by presenting his case through the mail. See Tex. R. Civ. P. 1 (providing that the rules of civil procedure are to be liberally construed to obtain "just, fair, equitable and impartial adjudication of the rights of litigants under established principles of substantive law" with "as great expedition and dispatch and at the least expense both to the litigants and to the state as may be practicable"); id. R. 71 ("When a party has mistakenly designated any plea or pleading, the court, if justice so requires, shall treat the plea or pleading as if it had been properly designated."); Spurlock v. Schroedter, 88 S.W.3d 733, 736 (Tex. App.-Corpus Christi-Edinburg 2002, no pet.) ("In considering the record before us, we review and evaluate pro se pleadings by standards less stringent than those applied to formal pleadings drafted by lawyers.").
By proceeding to trial without ruling on Grayson's request to appear via alternate means, "it is clear that the trial court implicitly denied [his] request." See In re Z.L.T., 124 S.W.3d at 165. The OAG seems to argue that, because the trial court was already conducting the hearing by alternative means-specifically, via videoconferencing-the trial court could not have erred in failing to facilitate Grayson's participation through any other alternative means. But "[w]hen the trial judge determines an inmate should not be allowed to appear personally, the inmate should be allowed to proceed by affidavit, deposition, telephone, or other effective means." In re Marriage of Bolton, 256 S.W.3d 832, 833 (Tex. App.-Dallas 2008, no pet.) (emphasis added); see In re J. A. R., 658 S.W.3d at 928; Larson, 368 S.W.3d at 797. The key word here is "effective." Grayson explained to the court that he was not able to participate in the hearing through video conferencing or through telephone because of the prison's internal policies, and that he was unable to provide exhibits via email. These explanations were not contradicted or objected to by the OAG, and there is nothing in the record that indicates the trial court considered these assertions, much less discounted them.
Here, the trial court ordered Grayson to attend the remote hearing but ignored his pleas to facilitate his attendance. While the trial court did not have to facilitate every potential method by which Grayson could effectively participate in the proceedings, it had to at least allow one method. See Larson, 368 S.W.3d at 796. Because the trial court failed to do so, we conclude that it abused its discretion. See In re A.W., 302 S.W.3d 925, 930 (Tex. App.-Dallas 2010, no pet.) ("In this case, Williams specifically proposed alternative means that would have allowed him to participate effectively at trial. By denying his request without allowing him to proceed by some other effective means, the trial court abused its discretion."); In re R.C.R., 230 S.W.3d 423, 427 (Tex. App.-Fort Worth 2007, no pet.) ("[T]he trial court dismissed appellant's case for failure to appear without providing appellant any means to appear. This is fundamentally unfair and denied appellant access to the courts." (footnote omitted)); see also Barton v. Off. of Att'y Gen., 2021 WL 4897827, at *5 (Tex. App.-Houston [1st Dist.] Oct. 21, 2021, no pet.) (mem. op.) ("[By] requiring Barton to appear at a hearing while not acting on his motion for a bench warrant or to participate by alternative means, the trial judge effectively closed the courthouse doors to him and foreclosed his opportunity to participate in significant proceedings involving his child.").
We sustain Grayson's final issue.
We express no opinion on the merits of Grayson's defenses to the underlying proceeding.
V. Conclusion
We reverse and remand for further proceedings consistent with this memorandum opinion.