Chandler v. Chandler, 1062

Decision Date15 April 1976
Docket NumberNo. 1062,1062
Citation536 S.W.2d 260
PartiesDorothy Virginia CHANDLER, Appellant, v. Dennis Ross CHANDLER, Appellee.
CourtTexas Court of Appeals

John L. Bates, Waco, for appellant.

Robert D. Nogueira, Beeville, for appellee.

OPINION

NYE, Chief Justice.

This is a divorce case filed by the husband against his wife. The trial court rendered judgment on May 19, 1975, granting the divorce and dividing and distributing the parties' properties. There were no children. The wife appeals raising two points which actually complain: 1) that the trial court abused its discretion in refusing to grant the wife's second motion for continuance and 2) that the trial court erred in dismissing the jury panel and trying the case without the aid of a jury.

The appellant wife argues in effect that her second motion for continuance should have been granted because her attorney (from Waco) had prior settings of cases which should have entitled him to a continuance as a matter of law. The chronological order of events up to the time of trial is important.

The transcript reflects that the original petition for divorce was filed September 24, 1974. On November 13, the wife's attorney made his request for a jury trial and requested notice of trial settings in accordance with Rule 246, T.R.C.P. A few days later on November 20, the wife's attorney paid the jury fee.

In November 20, the wife's attorney requested that the court order counseling and requested a hearing on the merits of this motion for the purposes of enforcing her request for counseling. In a hand written note on the bottom of the letter of transmittal, the wife's attorney requested that the case not be set for the week of December 5 and 6 because of prior commitments.

On the 25th day of November, the trial court issued its order setting the case on December 3, at 10:00 a.m. to show cause why counseling should not be ordered and in its letter of transmittal, the court set the case for trial on December 13, 1974, at 9:30 a.m. The wife's attorney responded by sending a telegram on December 4 asking for a continuance of the trial because of a prior court setting. The telegram was followed by formal first motion for continuance. The motion was granted. Thereafter, the wife filed her first amended answer.

On December 13, 1974, the trial court ordered a pre-trial conference on December 20, at 1:30 p.m. In answer to this setting, the wife's attorney wrote the judge stating that he had a criminal matter set at 10:00 a.m. on that date and suggested that the husband's attorney and he would agree upon a setting within a reasonable time in the future. The trial court in a hand written note on the bottom of the attorney's letter stated that the case was reset for 9:30 a.m. on December 30, 1974. On that date, the transcript shows that the court ordered counseling and directed that the report from the counselor be returned on the 27th day of January, 1975. The report of the Social Psychotherapist was subsequently filed on February 4, 1975. It stated that he was of the opinion that 'there exists no reasonable expectation of reconciliation of the parties'.

On May 6, 1975, the case was again set for trial on May 15, 1975, at 9:30 a.m. on the non-jury docket. The clerk of the court called the attorney's office and notified the secretary of that setting. This oral notice to the wife's attorney was followed by a formal letter from the district clerk dated May 9, 1975.

In a letter dated May 8, 1975, the wife's attorney wrote to the trial judge and said:

'I have received a notice from the Clerk of a setting on May 15, 1975. I have two cases scheduled for that day, one a contested child support case, and the other a juvenile case in which I was appointed.

I note also that the notice shows this to be non-jury. I have requested a jury and paid a jury fee, and I still request a jury.

Please pass this to another date. It would facilitate matters if the attorney for the petitioner would contact me as well as the Court for settings in this matter.'

The trial judge wrote back to the attorney for the wife that 'the case has been and remains set for trial at 9:30 a.m., Thursday, May 15, 1975. A jury panel will be on hand.'

On May 13, the attorney for the appellant mailed a second application for continuance addressed to the district clerk and stated that 'I would appreciate this motion being presented to the court prior to calling this case for trial.' The second motion for continuance was presented to the court and overruled.

The judgment recites that the case was called for trial after ample notice to both the parties and their respective counsel of record and a jury having been summoned and qualified at the demand of the wife, the case was called for...

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9 cases
  • Wise v. Pena
    • United States
    • Texas Court of Appeals
    • May 19, 1977
    ...McFarling v. Lampham, 489 S.W.2d 435 (Tex.Civ.App. Beaumont 1972, writ ref'd n. r. e.). See also Chandler v. Chandler, 536 S.W.2d 260 (Tex.Civ.App. Corpus Christi 1976, writ dism'd). In his third point of error Wise complains that the trial court erred in granting Pena recovery under § 27.0......
  • Villarreal v. Myers
    • United States
    • Texas Court of Appeals
    • March 24, 2022
    ...aware "which was no later than" the date she received notice of the trial court's order setting case for trial); Chandler v. Chandler, 536 S.W.2d 260, 262 (Tex. App.-Corpus Christi-Edinburg 1976, writ dism'd) (concluding same where appellant's attorney cited unavailability due to previously......
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    ...Hall v. C-F Employees Credit Union, 536 S.W.2d 266, 267 (Tex.Civ.App.--Texarkana 1976, no writ); Chandler v. Chandler, 536 S.W.2d 260, 262 (Tex.Civ.App.--Corpus Christi 1976, error dism'd); Crabbe v. Hord, 536 S.W.2d 409, 415 (Tex.Civ.App.--Fort Worth 1976, writ ref'd n.r.e.); Carruth v. Sh......
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