In re K.A.R.
| Decision Date | 30 August 2005 |
| Docket Number | No. 14-03-00970-CV.,14-03-00970-CV. |
| Citation | 171 S.W.3d 705 |
| Parties | In the Interest of K.A.R. |
| Court | Texas Supreme Court |
H. Lynne Clarke, Houston, TX, for appellants.
Edwin J. Terry, Jr., Austin, Kathleen M. McCumber, League City, TX, for appellees.
Panel consists of Chief Justice HEDGES and Justices FROST and GUZMAN.
MAJORITY OPINION
This appeal arises out of a post-divorce dispute between former spouses concerning their minor child. The ex-husband, who initially sued for modification of the divorce decree, ultimately non-suited his claims, but not before the ex-wife filed a counter-petition for modification and a motion for sanctions against both her ex-husband and his trial counsel. The trial court granted the ex-wife the relief she sought in her counter-petition as well as $13,000 in attorney's fees and expenses as a sanction against the ex-husband and his counsel. We hold that the trial court erred in awarding attorney's fees and expenses as child support and in awarding appellate fees not conditioned on the ex-wife's success on appeal. Therefore, we modify the trial court's judgment to delete the award of fees and expenses as child support and to make the award of appellate fees conditional on the ex-wife's success on appeal. As modified, we affirm the trial court's judgment.
In 1993, Kenneth L. Richardson1 and appellee Lisa Richardson were divorced. The divorce decree appointed Lisa as sole managing conservator of their minor son, K.A.R., and Kenneth as possessory conservator of K.A.R. The decree ordered Kenneth to attend regular counseling sessions conducted by Jose Cardena. In 2002, after K.A.R. expressed an interest in living with his father, Kenneth filed a petition to modify the divorce decree to make Kenneth a joint managing conservator and to give him the exclusive right to determine the primary residence of K.A.R. The trial court signed temporary orders denying Kenneth's request for temporary modification of conservatorship, ordering a psychological evaluation of Kenneth, Lisa, and K.A.R. by Dr. Ferrell, and ordering them to participate in counseling with Dr. Micheletti.
During a therapy session with Dr. Micheletti on March 20, 2003, Kenneth indicated that he was considering dismissing his petition to modify. Learning of this possibility through the therapy session, Lisa promptly notified her lawyer, Edwin J. Terry, Jr., of this development. On Monday, March 24, 2003, Lisa's lawyer called Kenneth's lawyer, appellant H. Lynne Clarke, to discuss Kenneth's position and to seek to avoid unnecessary fees and expenses. Clarke told Terry that she believed Kenneth was interested in settling the case, but that she had not spoken to him. According to Terry, Clarke stated she would call him back on March 25, 2003. Though Clarke may not have spoken to Kenneth as of March 24, she had received on March 20, a letter faxed by Kenneth, stating that he wished to drop his case against Lisa and requesting that "all parties involved immediately cease and desist all actions." Clarke did not inform Terry of this communication from Kenneth until April 1. Clarke did not call Terry back until 4:30 p.m. on Thursday, March 27, 2003, when she informed a legal assistant at Terry's office that Clarke still had not spoken to Kenneth, that Clarke would be out of her office the next day, and that she did not expect to speak to her client until the mediation scheduled for the following Monday, March 31. Clarke was told that Terry, whose office was in Austin, was out of town and that he would be traveling to Houston for the Monday mediation. Clarke told Terry's legal assistant she planned on working out a settlement at the mediation on Monday.
On Friday, March 28, Lisa filed a counter-petition to modify in which she requested the court to modify the divorce decree to add as a condition for Kenneth's access to and possession of K.A.R. that Kenneth continue participating in family counseling with Dr. Micheletti. In her motion-for-new-trial affidavit Clarke testifies to the following, among other things:
• Clarke finally contacted Kenneth by telephone during the afternoon of March 28.
• Kenneth was distressed to learn of Lisa's counter-petition but agreed to stay in counseling with Dr. Micheletti.
• During their March 28 conversation, Kenneth indicated his unwillingness to attend the mediation.
• Clarke advised Kenneth to attend the mediation and not to nonsuit his petition Clarke counseled Kenneth as to the impact of Lisa's counter-petition.
• Kenneth agreed to talk with Clarke about the issue again over the weekend.
• On Sunday morning, March 30, Kenneth again talked to Clarke and was adamant that he would not attend the mediation. Kenneth instructed Clarke to notify Lisa's counsel of this fact.
On Sunday, March 30, a legal assistant from Terry's office was in the office and noticed a faxed letter received at 12:04 p.m. that day from Clarke. The letter stated that Kenneth was nonsuiting his petition to modify and would not attend the mediation the next day. Terry, however, was already in Houston, and he was unable to confirm whether the mediation had been canceled. Terry stayed overnight in Houston and prepared for the mediation.
On Monday, March 31, Terry learned that a similar message had been faxed to the mediator. Neither Clarke nor Kenneth appeared for the scheduled mediation. Neither filed any motion with the trial court seeking relief from attending the court-ordered mediation. However, on March 31, Kenneth filed a nonsuit as to his petition to modify, acknowledging that Lisa's counter-petition was still pending.
With trial on the counter-petition already set for April 7, 2003, on April 1, Clarke filed a motion to withdraw as Kenneth's counsel. Clarke attached to this motion Kenneth's March 20, 2003, letter to her.
On April 3, Lisa filed a motion for sanctions against Kenneth and Clarke, urging the court to grant relief based on its inherent power to sanction. Lisa sought attorney's fees and expenses for attending the mediation that never occurred and for preparing, filing, and having a hearing on the motion for sanctions. Lisa alleged that the trial court should sanction Kenneth and Clarke for "engaging in bad faith litigation practices" and for engaging in a "course of abusive conduct" that created needless effort and expense. In her motion-for-new-trial affidavit, Clarke states that she received notice on April 3 that the trial court would hear the motion for sanctions on April 7. On April 4, Kenneth filed a motion for continuance.
Kenneth and Clarke did not appear for either the trial or the sanctions hearing on April 7. The trial court denied Kenneth's motion for continuance and heard evidence. The trial judge then announced in open court that he was granting Lisa's counter-petition and granting sanctions against Kenneth and Clarke.
On April 27, Kenneth committed suicide. Clarke filed a suggestion of Kenneth's death, and shortly thereafter the trial judge signed a written order granting Lisa's counter-petition, awarding $37,000 in attorney's fees and expenses as child support, awarding appellate attorney's fees, and ordering sanctions against Kenneth and Clarke for $13,000 in fees and expenses. Kenneth and Clarke filed a "Motion to Vacate Default Judgment and Motion for New Trial," which was overruled by operation of law.
In his first issue, Kenneth asserts that the trial court abused its discretion in denying his motion for continuance. On February 17, 2003, the trial court set this case for trial at 9:00 a.m. on April 7, 2003 in Galveston. On April 4, 2003, Kenneth filed a motion for continuance. The only ground asserted in the motion was that Clarke had two other cases set for trial at 10:00 a.m. on April 7, 2003, in the 311th District Court in Houston. Kenneth attached to his motion for continuance scheduling orders from these cases showing that on January 14, 2003, these cases were set for trial on April 7, 2003. The trial court denied the motion for continuance on April 7, 2003.
On appeal, Kenneth first relies upon Smith v. Babcock & Wilcox Const. Co., Inc., 913 S.W.2d 467 (Tex.1995). However, this case did not involve an appeal from a denial of a motion for continuance; rather, it involved an appeal from the trial court's denial of a motion to reinstate following a dismissal for want of prosecution based on the failure of the plaintiffs and their attorneys to appear at trial. See Smith, 913 S.W.2d at 468. In the instant case, Kenneth was the counter-defendant. The trial court denied Kenneth's motion for continuance and proceeded with trial in the absence of Kenneth and his lawyer. This case does not involve a dismissal for want of prosecution or a motion to reinstate. Furthermore, unlike in Smith, there is no evidence in this record that Kenneth's counsel was actually in trial in another case when the trial court called the instant case to trial, and there is no evidence in this record that Clarke believed the trial court would grant a continuance based on her being in trial in another court. See id. at 467-68 (). Therefore, we conclude the Smith case is not on point. See id.
Kenneth's main argument is based on Rule 10 of the Regional Rules of Administration of the Second Administrative Judicial Region. See SEC. ADMIN. JUD....
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