in the Interest of V.I.P., a Child

• Court: Court of Appeals of Texas
• Decided: June 27, 2019
• Docket: 01-18-00704-CV
• Status: Published

Opinion

Opinion issued June 27, 2019.

In The

Court of Appeals For The

First District of Texas ———————————— NO. 01-18-00704-CV ——————————— 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

MEMORANDUM OPINION

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

2 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.

1 It is not clear from the record whether the court was ruling on the written motion for continuance that Mother allegedly filed, or the oral motion for continuance that Mother allegedly raised during the proceeding, or both. 3 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 to pay $22,900 in attorney’s fees and

costs to Father’s attorney.2

Mother filed a timely motion for new trial which was overruled by operation

of law.

Motion for Continuance

In a single issue, Mother argues that the trial court abused its discretion by

denying her motion for continuance and that the trial court’s denial of her motion

effectively denied her right to counsel.

A. Standard of Review and Applicable Law

We review a trial court’s order denying a motion for continuance for an abuse

of discretion. Joe v. Two Thirty Nine Joint Venture, 145 S.W.3d 150, 161 (Tex.

2004); Harrison v. Harrison, 367 S.W.3d 822, 826–27 (Tex. App.—Houston [14th

2 Other than arguing that the trial court’s order should be reversed in its entirety and the matter remanded for new trial, Mother is not challenging the award of attorney’s fees. 4 Dist.] 2012, pet. denied). A trial court abuses its discretion when it acts unreasonably

or in an arbitrary manner without reference to guiding rules or principles. See In re

Marriage of Harrison, 557 S.W.3d 99, 112 (Tex. App.—Houston [14th Dist.] 2018,

pet. denied); Harrison, 367 S.W.3d at 826–27 (citing Butnaru v. Ford Motor Co.,

84 S.W.3d 198, 211 (Tex. 2002)). A trial court does not abuse its discretion,

however, when some evidence reasonably supports its decision. See In re Marriage

of Harrison, 557 S.W.3d at 112 (citing Butnaru, 84 S.W.3d at 211).

The record reflects that Mother agreed to the motion for withdrawal and she

had over four months to retain new counsel after the trial court granted the motion

on November 3, 2017. Mother made one documented attempt to secure counsel

(Lone Star Legal Aid) and she knew the organization would not represent her in late

January, almost two months before trial. Although she filed a statement of indigency

on March 8, 2018, the trial record reflects that the trial court was skeptical of

Mother’s claim that she could not afford to hire counsel because she had retained an

attorney initially, and she admitted that her husband supported her financially.

Furthermore, Mother did appear with counsel at subsequent hearings before the

court. We cannot say that the trial court abused its discretion by denying Mother’s

motion for continuance after giving her four months to find another lawyer. See

Gillie v. Boulas, 65 S.W.3d 219, 223 (Tex. App.—Dallas 2001, pet. denied) (holding

trial court did not abuse its discretion by denying motion for continuance based on

5 lack of counsel when party had been given almost four months to retain new counsel

prior to trial). We further hold that the trial court’s denial of the motion did not

deprive Mother of her right to counsel. See id. at 223 (holding four months was

sufficient time to obtain new counsel and prepare for trial and that party who did not

retain counsel during that period “was not deprived of his right to be represented by

counsel; he simply failed to secure representation within the time provided by the

trial court”). Mother directs our attention to Villegas, to support her position, but two

days is not four months. Cf. Villegas v. Carter, 711 S.W.2d 624, 626–27 (Tex. 1986)

(stating that “[t]he right to counsel is a valuable right; its unwarranted denial is

reversible error,” and holding trial court should have either denied counsel’s motion

to withdraw two days before trial or granted party’s motion for continuance to give

“time to secure new counsel and time for the new counsel to investigate the case and

prepare for trial”).

We overrule Mother’s sole issue.

Conclusion

We affirm the trial court’s order.

Russell Lloyd Justice

Panel consists of Justices Lloyd, Landau, and Countiss.