Gendebien v. Gendebien, C14-83-183CV

• Decision Date: 12 April 1984
• Docket Number: No. C14-83-183CV,C14-83-183CV
• Parties: Amuary Alexandre GENDEBIEN, Appellant, v. Carine G. GENDEBIEN, Appellee. (14th Dist.)
• Court: Texas Court of Appeals

Page 905

668 S.W.2d 905

Amuary Alexandre GENDEBIEN, Appellant, v. Carine G. GENDEBIEN, Appellee.

No. C14-83-183CV.

Court of Appeals of Texas Houston (14th Dist.).

April 12, 1984.

Harry L. Tindall, Ellen Elkins Grimes, Houston, for appellant.

Ralph Balasco, Houston, for appellee.

Before JUNELL, MURPHY and SEARS, JJ.

OPINION

SEARS, Justice.

This is an appeal from a decree granting a divorce and dividing the estate of the parties. Amaury-Alexandre Gendebien, Appellant, contends: that he did not realize the nature of the trial proceedings and was denied due process of law; that he did not have effective assistance of counsel at trial; the trial court erred in not admitting into evidence an alleged prenuptial agreement written in French; the trial court erred in its characterization and division of the estate of the parties; and the trial court erred in ordering the attorney's fees of Carine S. Gendebien, Appellee, be paid by the Appellant. We find no error.

Appellee filed her Original Petition for Divorce on April 24, 1981. Appellant responded by filing an Original Answer which consisted of a general denial and a request to be appointed Managing Conservator of the couple's one child. The matter was subsequently set for trial December 6, 1982.

On November 3, 1982, after a hearing, the trial court granted the Motion to withdraw filed by Appellant's former attorney. The docket sheet shows that Appellant was present in the court room on November 3, 1982, but that he left before the hearing on the Motion. Appellant's former attorney testified at that hearing that the Appellant had been notified of the December 6 trial setting in this case by both certified mail and regular mail, prior to the November 3 hearing.

On December 6, 1982, Appellant appeared before the court without counsel. In Appellant's presence, the trial judge reset the trial for the afternoon of December 9, 1982, at which time Appellant again appeared without counsel, and the case proceeded to trial.

During the trial, Appellant referred to a request for continuance but at no time before or during the trial did Appellant file a Motion for Continuance. Appellant testified that he did not attempt to retain another attorney until after the trial commenced. On Friday, December 10, the Appellant represented to the court that he had a new attorney but that the attorney could not be present at that time. The court recessed until Monday, December 13, at which time the trial continued. Appellant failed to appear at that time or inform the court of the reason for his absence. The court concluded the trial and entered judgment.

The record contains two letters from the "new" attorney, one letter was to Appellant and one to the trial judge. According to the letters, the attorney told Appellant that he was not retained and did not agree to represent him. He acknowledged that Appellant left the file on this lawsuit at the attorney's office on the evening of December 10th. The attorney attempted to return the file on December 11th but the Appellant was not home. According to the note Appellant left with his file at the attorney's office, Appellant left for Belgium on December 11th and did not plan to return until approximately January 10, 1983.

In Point of error number one, Appellant argues that the trial court erred in entering the divorce decree because the Appellant did not realize the nature of the proceedings at trial and was thus denied due process of law. The second point of error is that the trial court erred in entering the divorce decree because Appellant did not have the effective assistance of counsel at trial.

The real complaint behind points of error one and two is the failure of the trial judge to grant a continuance due to absence of counsel. Absence of counsel will not be a good cause for a continuance of the cause when called for trial, except in the discretion of the trial court, upon cause shown or upon matters within the knowledge or information of the judge to be stated in the record. TEX.R.CIV.P. 253. There is no showing in the record of any matters within the information or knowledge of the judge which show good cause for continuance.

In civil cases in which the absence of counsel has been urged as grounds for a continuance, Texas courts have required a showing that the failure to be represented at trial was not due to the party's own fault or negligence. State v. Crank, 666 S.W.2d 91 (Tex.1984). The granting or denial of an application for continuance rests within the sound discretion of the trial judge. State v. Crank, Id; Willoughby v. Upshur Rural Electric Cooperative Corporation, 562 S.W.2d 33 (Tex.Civ.App.--Tyler 1978, writ ref'd n.r.e.). The action of the trial court denying the motion will not be disturbed unless the record shows a clear abuse of discretion. Chambers v. Lee, 566 S.W.2d 69 (Tex.Civ.App.--Texarkana 1978, no writ); Meyerland Company v. Palais Royal of Houston, Inc., 557 S.W.2d 534 (Tex.Civ.App.--Houston [1st Dist.] 1977, no writ). We find no abuse of discretion.

Appellant had notice more than a month before the December 6th trial setting. The trial judge reset the trial until December 9th. Nevertheless, it was not until December 10th that Appellant actually sought to employ a new attorney. On December 10th, Appellant wrongfully represented to the court that he had retained new counsel. Appellant has failed to show that absence of counsel was not due to his own fault or negligence. The fact the Appellant left the country in the middle of his trial, or, chose not to return to court and participate in the proceedings, is an indication of his voluntary choice to ignore the trial proceedings. Appellant has failed to show any exercise of reasonable diligence in attempting to hire a new attorney or to file a proper written motion for continuance based on the absence of legal representation. Points of error one and two are overruled.

Appellant's third point of error is that the trial court erred in failing to admit into evidence, at the Motion for New Trial hearing, an alleged prenuptial agreement, and, by failing to grant a new trial upon the basis of that agreement. The document Appellant refers to as a prenuptial agreement was written completely in French. Appellee objected to the admission "on the basis that this is written in french and, therefore, its incompetent evidence...." When a party offers into evidence, a document written in a foreign language, it is the duty of the...