Marr v. Marr

905 S.W.2d 331, 1995 Tex. App. LEXIS 1714, 1995 WL 452522
CourtCourt of Appeals of Texas
DecidedJuly 31, 1995
Docket10-94-175-CV
StatusPublished
Cited by20 cases

This text of 905 S.W.2d 331 (Marr v. Marr) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Marr v. Marr, 905 S.W.2d 331, 1995 Tex. App. LEXIS 1714, 1995 WL 452522 (Tex. Ct. App. 1995).

Opinions

OPINION

CUMMINGS, Justice.

Appellant Peggy Pickering Marr appeals the trial court’s division of her and Appellee’s marital estate. We reverse and remand.

PROCEDURAL AND FACTUAL BACKGROUND

The parties married on or about November 26, 1982, and separated for the final time in September of 1991. Appellee James Evan Marr filed his original petition for divorce on June 29, 1990, in the 19th District Court of McLennan County. Appellant answered with a general denial on August 3, 1990.

On January 19, 1993, Appellee filed a “Request For Production of Documents.” Over the next seven months, Appellant, despite repeated requests and inquiries by Appellee’s counsel, never produced the documents. Notwithstanding Appellant’s failure to produce the requested documents, she, on or about June 29, 1993, requested a jury trial and paid the appropriate jury fee. Because the requested documents were never produced, Appellee on July 29, 1993, filed a “Motion to Compel and For Contempt and Sanctions,” and on January 3, 1994, the trial court entered an order compelling Appellant to turn over the documents. By a week later Appellant still had not produced the requested documents; accordingly, on January 10 Appellee filed a motion for sanctions, asking the court to order Appellant to pay attorney’s fees and to strike Appellant’s pleadings if the requested documents were not produced by a given date. A hearing on the motion was scheduled for January 11.

At the January 11 hearing, Appellant’s attorney did not appear because she was ill; the attorney’s partner, however, did appear on her behalf. The trial court, at the hearing, granted Appellant’s motion for a continuance and rescheduled the trial date for February 22,1994; the court also granted Appel-lee’s motion for sanctions and ordered that the requested documents be produced by 5:00 p.m. on January 31, 1994, or Appellant’s pleadings would be stricken and Appellee would be permitted to take a default judgment. See Tex.R.Civ.P. 215(2)(b)(5). Appellant failed to produce the documents by the end of the day on January 31.

On February 1, 1994, Appellee and his attorney appeared before the 19th District Court to prove up Appellee’s divorce petition and receive the default judgment threatened by the court on January 11. The trial court telephoned Appellant’s attorney’s partner moments before the hearing was conducted to let him know of the court’s proposed action, but other than the telephone call Appellant received no notice of the hearing on the property division. Appellant was never warned that if she failed to produce the requested documents by January 31 that a hearing on the division of the marital property would be conducted the next day. Nevertheless, the property division hearing was conducted on February 1 without the pres[333]*333ence of Appellant or any of her legal representatives, and the Pinal Decree of Divorce was entered February 4, dividing the marital estate in the manner requested by Appellee in every respect.

Through five points of error Appellant argues: (1) and (2) the trial court erred in conducting the February 1, 1994, property division hearing without giving her sufficient notice; (8) Appellant was deprived of her right to a jury trial when the court conducted the property division hearing without a jury; (4) the trial court erred in failing to order a just and right division of the marital estate; and (5) the trial court erred in characterizing several items of property as Appellee’s separate property when they should have been characterized as community property. We reverse and remand for a new property division hearing.

WHETHER APPELLANT WAS GIVEN SUFFICIENT NOTICE OF THE PROPERTY DIVISION HEARING

In eases involving unliquidated damages or claims not proven by written instruments, Ride of Civil Procedure 243 requires parties who have properly requested a jury trial be provided sufficient notice of a hearing before a jury on the issue of damages even though they forfeited their arguments on the merits of the case by allowing a judgment of default to be entered against them. Tex.R.Civ.P. 243.1 The defaulting party is entitled to notice by a writ of inquiry of the date for his hearing on damages before a jury once the default judgment has been entered. Id.2 Upon inquiry into the amount of unliquidated damages after a default judgment, the defaulting party has the right to be present, to interpose objections to testimony offered by the plaintiffs witnesses, and to cross-examine them in order that, by the exclusion of improper evidence, a proper judgment may be rendered on competent evidence. Bass v. Duffey, 620 S.W.2d 847, 849-50 (Tex.Civ.App.—Houston [14th Dist.] 1981, no writ).

The question before us is whether Rule 243 applies in divorce eases; we will therefore examine the rule to ascertain its meaning and scope. Rule 243 recognizes, first, the importance of a party’s right to a trial by jury, and, second, that the determination of the amount of damages is a question primarily for the jury. See Mackey v. Bradley Motors, Inc., 871 S.W.2d 243, 247-48 (Tex.App.—Amarillo), rev’d on other grounds, 878 S.W.2d 140 (Tex.1994) (per curiam); Hanners v. State Bar of Texas, 860 S.W.2d 903, 910-11 (Tex.App.—Dallas 1993, no writ)3; see also Davis v. City of Galveston, 635 S.W.2d 634, 635 (Tex.App.—Waco 1982, no writ). It assures defaulting defendants, provided they properly request and do not waive a trial by jury, that they will be afforded their right to have a jury weigh the facts underlying the plaintiffs complaint for unliquidated damages and ascertain from those facts the amount of their damages. Hanners, 860 S.W.2d at 911.

We believe Rule 243 applies in cases involving the division of marital property as well as the proper characterization of the parties’ assets as either community or separate. The prominent role of a jury in divorce cases is readily apparent. Parties to divorce proceedings are entitled to a jury trial upon proper request; the jury alone [334]*334decides whether contested assets will be characterized as either community or separate; and, while the question of a just and right division of the marital estate rests solely within the sound discretion of the court, the jury’s findings on the factual issues underlying the division of the marital estate, including the valuation of the assets, are conclusive. Tex.Fam.Code Ann. §§ 3.61, 3.63 (Vernon 1993); In re Marriage of Moore, 890 S.W.2d 821, 834 n. 7; 838 (Tex.App.—Amarillo 1994, no writ); Archambault v. Archambault, 763 S.W.2d 50, 51 (Tex.App.—Beaumont 1988, no writ).

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Marr v. Marr
905 S.W.2d 331 (Court of Appeals of Texas, 1995)

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905 S.W.2d 331, 1995 Tex. App. LEXIS 1714, 1995 WL 452522, Counsel Stack Legal Research, https://law.counselstack.com/opinion/marr-v-marr-texapp-1995.