Hatteberg v. Hatteberg
| Decision Date | 03 November 1994 |
| Docket Number | No. 01-93-00061-CV,01-93-00061-CV |
| Parties | Andrea Dey HATTEBERG, Appellant, v. Richard HATTEBERG, Appellee. (1st Dist.) |
| Court | Texas Court of Appeals |
Leslie Werner de Soliz, Yoakum, for appellant.
Stewart W. Gagnon, Joy M. Soloway, Houston, for appellee.
Before O'CONNOR, PRICE * and WILSON, JJ.
Appellant, Andrea Dey Hatteberg (Andrea), and appellee, Richard Hatteberg (Richard), were divorced in August 1992. Andrea now appeals from the final judgment and decree of divorce entered by the trial court. Andrea argues in four points of error that the court erred in: (1) denying her motion for continuance; (2) setting the amount of child support to be paid by Richard; (3) failing to make findings concerning child support in the final judgment and decree of divorce; and (4) dividing the proceeds of Richard's retirement profit sharing plan. We affirm in part, and reverse and remand for a redivision of the retirement profit sharing plan.
Andrea and Richard married in January 1979. A child was born in December 1979. The two separated in 1985. In May 1991, Andrea petitioned for divorce. After a trial before the court on August 26, 1992, the court entered a decree of divorce that named Andrea as the child's managing conservator, ordered Richard to pay child support to Andrea of $1000 per month, and divided their community property interest in the Employees' Profit Sharing Plan of the Red Adair Co., Inc.
Denial of Motion for continuance
In her first point of error, Andrea states that the court erred in denying her motion for continuance filed on the day of trial. Andrea had previously filed two motions for continuance; the first was granted, and the second was denied.
On October 15, 1991, Richard requested that the case be set for trial November 18, 1991. On October 28, 1991, Andrea filed a motion for continuance. The grounds alleged for continuance were:
1. A November trial date would be unfair to Andrea because she would be studying for exams during her final semester of law school.
2. No inventories or appraisements had been filed pursuant to local rule 6B.
3. Further discovery was necessary because Richard would not comply with informal discovery.
4. The case was not ready for trial.
These assertions challenged the announcement of ready made by Richard in the trial setting form. The motion for continuance was granted.
On June 12, 1992, Richard requested the case be set for trial on August 24, 1992. On August 7, 1992, Andrea filed a second motion for continuance stating the following grounds:
1. Richard had not fully complied with Andrea's request for production, which was due to be completed August 15, 1992.
2. On July 28, 1992, Andrea first learned that the value of a certain piece of property would now be contested.
3. More differences in property valuation had arisen since the first trial setting.
4. Her deposition (Andrea's) had not been completed and Richard's deposition might be necessary.
5. Additional issues concerning Richard's health arose, and additional discovery on the issue was necessary.
6. Production requested by Andrea in August of 1991 was not yet complete.
7. Andrea had been unable to prepare for trial due to studying for the bar exam and relocating. Additionally, her attorney would be on vacation the week of August 10, and would be attending the advanced Family Law seminar the week of August 17.
This second motion for continuance was denied. A third motion for continuance was filed on August 27, 1992, the day trial started. Andrea re-urged the same grounds listed in her second motion. Attached to the third motion was the affidavit of Andrea stating that the testimony of Paul N. "Red" Adair could not be obtained and was material to her case. The motion was denied, and the case proceeded to trial.
A ruling on a motion for continuance will only be reviewed for a clear abuse of discretion. State v. Crank, 666 S.W.2d 91, 94 (Tex.1984); Cedillo v. Jefferson, 802 S.W.2d 866, 867 (Tex.App.--Houston [1st Dist.] 1991, writ denied). The trial court may be reversed for abuse of discretion only when this Court finds the trial court has acted in an arbitrary or unreasonable manner. Beaumont Bank, N.A. v. Buller, 806 S.W.2d 223, 226 (Tex.1991); Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex.1985). In determining whether there has been an abuse of discretion, an appellate court views the evidence in the light most favorable to the trial court and indulges every legal presumption in favor of the judgment. Parks v. U.S. Home, 652 S.W.2d 479, 485 (Tex.App.--Houston [1st Dist.] 1983, writ dism'd).
When the motion for continuance is based on the absence of a material witness or the need for additional time for discovery, TEX.R.CIV.P. 252 requires an affidavit to be filed that states:
1. the testimony is material, and showing the materiality thereof;
2. due diligence has been used to procure that testimony, and stating such diligence;
3. the cause of the failure to procure testimony;
4. such testimony cannot be procured from any other source, (only required for a second motion for continuance);
5. if the continuance is requested because of the absence of a witness, the name and residence of the witness and what that witness will prove; and
6. the continuance is not sought for delay only, but so that justice may be done.
Andrea argues that the failure to grant the motion for continuance was an abuse of discretion because it precluded her from completing discovery and denied her the testimony of necessary witnesses. Specifically, Andrea claims discovery was not yet completed; she was denied the testimony of Red Adair, her husband's employer, and Raymond Henry, another employee of Red Adair; and she had inadequate time to prepare for trial. We first address the testimony of the two witnesses and then address the discovery process.
The affidavit filed by Andrea discussed only the testimony of Adair. Therefore, under the rule, the trial judge did not commit error in denying the continuance due to the lack of Henry's testimony. Compliance with rule 252 is a threshold requirement for obtaining relief from the trial judge.
The affidavit discussing Adair's testimony gives only his business address, not his home address. Otherwise, it discusses each requirement of rule 252. Andrea attempted to satisfy the requirement of due diligence by stating Adair had been unavailable for service.
Andrea includes in the record the affidavit of the process server who states both Henry and Adair had been unavailable for service. The server stated he attempted service four times between August 18 and 25, 1992. August 18 was only nine days before trial. A last minute attempt does not indicate due diligence.
It appears that appellant elected to forego its right to take the depositions of the two witnesses. At the "eleventh hour" appellant asked the issuance of subpoenas which could not be served because the witnesses were either out of the state or under previous subpoena. These facts, in our opinion, do not constitute that degree of diligence which the law requires.
Having failed to show due diligence in procuring Adair's testimony, we find no error in denying the motion for continuance based on the absence of either witness.
Andrea argues the trial court should have granted the motion for continuance because discovery was not complete due to Richard failing to respond or responding on a date very close to trial. When requesting additional time for discovery, rule 252 must be complied with under oath. Verkin v. Southwest Center One, Ltd., 784 S.W.2d 92, 94 (Tex.App.--Houston [1st Dist.] 1989, writ denied). This includes the requirement to show due diligence. This case had been pending more than one year. Andrea delayed many of her discovery requests until close to trial on the premise that Richard would comply with her informal requests.
A party who does not diligently utilize the procedures for discovery can seldom claim reversible error when the trial court refuses a continuance. State v. Wood Oil Distrib. Inc., 751 S.W.2d 863, 865 (Tex.1988); Verkin, 784 S.W.2d at 95. We do not find the trial court abused its discretion in denying Andrea's motion for continuance based on incomplete discovery.
Andrea argues that, for several reasons, she was unable to prepare for trial after the court set the trial date on June 10. She was preparing for the bar examination through June and July. She received a notice of deposition in this case on July 31 for August 4. On August 5 through 10, she and her son were moving to Midland. During the week of August 10, her attorney was on vacation. During the week of August 17, her attorney attended the advanced family law seminar, and her child was injured from August 9 until trial.
The denial of a motion for continuance based on lack of time to prepare for trial will not be found an abuse of discretion. Cronen v. Nix, 611 S.W.2d 651, 653 (Tex.Civ.App.--Houston [1st Dist.] 1980, writ ref'd n.r.e.). Additionally, TEX.R.CIV.P. 253 states absence of counsel is not good cause for a motion for continuance. This suit had been pending since May 1991, and nearly a year had passed since the previous trial setting. Given this ample time to prepare, we do not find the court abused its discretion in denying the motion for continuance because of Andrea's constraints on her ability to prepare for trial.
We overrule appellant's first point of error.
Findings of fact under Family Code section 14.057
In her third point of error, Andrea argues the trial court erred in failing to make proper child support fact findings, as required under TEX.FAM.CODE ANN. § 14.057 (Vernon Supp.1994), when it awarded...
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