De La Paz v. De La Paz, No. 13-07-00297-CV (Tex. App. 5/7/2009)
| Decision Date | 07 May 2009 |
| Docket Number | No. 13-07-00297-CV.,13-07-00297-CV. |
| Parties | ROSITA DE LA PAZ, Appellant, v. ADAN DE LA PAZ, Appellee. |
| Court | Texas Court of Appeals |
On Appeal from the 28th District Court of Nueces County, Texas.
Before Chief Justice VALDEZ and Justices GARZA and VELA.
This case involves an acrimonious divorce between appellant, Rosita De La Paz, and appellee, Adan De La Paz. Rosita appeals the final divorce decree entered by the trial court on February 22, 2007. By three issues, which can be categorized properly as two, Rosita contends that: (1) the trial court abused its discretion in making an unreasonable and arbitrary division of the marital estate; and (2) she was denied her due process right to be heard when the trial court denied her request for more time to seek counsel. We affirm.
On December 1, 2004, Rosita filed an original petition for divorce on the grounds that the marriage had become insupportable because of discord or conflict of personalities. In her petition, Rosita requested a temporary restraining order against Adan, temporary orders concerning the use of the marital property, temporary exclusive use of the marital residence, and temporary support, among other things. In addition, Rosita attached an affidavit stating: I believe that my husband, Adan De La Paz[,] has transferred property belonging to our marital estate without my knowledge or consent and without making any accounting for the proceeds from doing so. Based on his history of having done so and his statements to me concerning our property, I believe he intends to continue to do so.
Adan was personally served with a copy of the petition on December 1, 2004. On December 15, 2004, Adan filed his original counter-petition for divorce, original answer to Rosita's petition, and a motion for temporary orders, which mirrored Rosita's request for temporary orders.
On May 18, 2006, the trial court conducted the final hearing in this case.1 A final decree of divorce was signed by the trial court on June 2, 2006. The final decree awarded specific property to each spouse as their sole and separate property. Notably, each were awarded (1) a one-half undivided interest in 1533 16th Street in Corpus Christi, Texas, and (2) a one-half undivided interest in 1537 16th Street in Corpus Christi. In addition, Rosita was awarded a full interest in 1541 16th Street in Corpus Christi as her sole and separate property.
Adan filed a motion for new trial on July 3, 2006. In his motion, Adan explained that he did not participate in the May 18, 2006 final hearing because he was not provided with notice of the trial setting. Adan demonstrated that notice was sent to 1541 16th Street in Corpus Christi, where he and Rosita resided during the course of the divorce proceedings. Adan suggested that Rosita intercepted the notice and informed him that the case had already been dropped. Furthermore, Adan argued that the trial court awarded Rosita property that was his separate property. In support of his motion for new trial, Adan executed an affidavit where he stated the following:
I was not aware of the trial setting in this case on May 18, 2006. If a notice was mailed to me at 1541 16th Street, Corpus Christi, Texas 78404, I did not receive it, nor did I have any other notice of that setting. I was not the only person residing in that house at the time. Among others, my wife, Rosita De La Paz, the Petitioner in this case, was living there. I would not have been expecting a notice, since my wife had led me to believe that this case, which was filed in 2004, had been dropped. I also never received a notice that a judgment had been entered in this case. I only learned of it on June 29, 2006, when I went to pay taxes on the house where I was living and found out that it was no longer in my name. I had lived with my wife and children in that house continuously throughout the divorce proceedings and since the decree was signed.
. . . .
The real property at 1541 16th Street, Corpus Christi, Texas, that was awarded to my wife was actually my separate property. I owned it before we were married. The real properties at 1533 16th Street and 1537 16th Street, which were awarded half to me and half to my wife, are owned by my mother. I had owned them briefly, but they were transferred to my nephew, Robert De La Paz Alvarez, well before the divorce took place, and he later transferred them to my mother. I had gotten them from my sister, Terry, as my separate property[.] No community funds were used to purchase it from her. The property was exchanged among my family members depending on who could keep up the taxes at any given time. The transfer to my nephew was not done with any intent to defraud the community and was never part of the community property. Except for a little money applied to property taxes, no funds of ours were expended on the property. We put more money into the bakery that my wife claims as her separate property than we did in the real property at 1533 and 1537 16th Street.
. . . .
The division of the actual community estate is disproportionately in favor of my wife.
The trial court subsequently denied Adan's motion for new trial on August 2, 2006. On August 11, 2006, Adan filed a motion for leave of court and an amended motion for new trial, advancing many of the same arguments as contained in the original motion for new trial but with additional analysis and documentary evidence. Notably, in his amended motion for new trial, Adan stated that the marriage between he and Rosita occurred in 1995. The trial court signed an order granting Adan's motion for leave and amended motion for new trial on August 22, 2006. The order acknowledged that the parties had agreed to the motion and that the trial court's June 2, 2006 final decree was invalid because Adan neither received notice of nor participated in the earlier trial setting. Thus, the June 2, 2006 final decree was vacated.
The trial court set the case for a final hearing on December 15, 2006. Rosita then filed a first amended original petition for divorce on November 21, 2006. In this filing, Rosita alleged that she and Adan were married by common law on January 24, 1989, and thereafter entered into a ceremonial marriage on September 10, 1994.2 At the scheduled December 15, 2006 hearing, the trial court granted Rosita's request for more time to retain counsel.
The final hearing was then rescheduled for February 2, 2007. Prior to opening arguments, Rosita requested additional time from the trial court to retain counsel, but her request was denied. After hearing arguments, the trial court took the matter under advisement. In the meantime, Adan submitted a proposed final divorce decree. On February 19, 2007, Rosita filed objections to Adan's proposed final decree of divorce. In her objections, Rosita alleged that Adan's proposed distribution of the marital estate was unfair because: (1) the proposed decree ordered the sale of 1541 16th Street, where she had lived for over fifteen years; and (2) it divested her of her previously granted community interest in 1533 and 1537 16th Street while Adan received "all of the interest in the other two houses acquired during their marriage, 1533 and 1537 16th Street." Rosita further alleged that once the home at 1541 16th Street was sold and all encumbrances were removed and fees were paid, she would only be entitled to about $5,000.
Over Rosita's objections, the trial court signed a final decree of divorce on February 22, 2007, which substantially matched Adan's proposed decree. The divorce decree itemized the sole and separate property of each spouse and ordered the sale of 1541 16th Street with the proceeds to be split by the parties once all outstanding encumbrances were removed and all fees associated with the property were paid. However, the decree did not reference the properties at 1533 and 1537 16th Street.
On March 9, 2007, Rosita filed a motion for new trial, asserting that the trial court denied her due process by requiring her to proceed at the February 2, 2007 final hearing without allowing her adequate time to retain counsel, and that, as a result of the trial court's denial of her due process rights, she lost all of her community interest in two of the houses on 16th Street. The trial court did not rule on Rosita's motion for new trial; therefore, it was overruled by operation of law. See Tex. R. Civ. P. 329b(c). This appeal ensued.
By her second issue, Rosita argues that by denying her additional time to retain counsel at the February 2, 2007 final hearing, the trial court prevented her from being heard meaningfully. Rosita further argues that her lack of proficiency in the English language and her lack of knowledge of the law caused her to be "unheard or misinterpreted," thus constituting a denial of her due process rights. Adan, proceeding pro se on appeal, argues that the record clearly establishes that Rosita understood what she was doing at the February 2, 2007 final hearing; therefore, she was not denied due process of law.
We review a denial of a continuance under an abuse of discretion standard. See Villegas v. Carter, 711 S.W.2d 624, 626 (Tex. 1986). The trial court's action in denying a continuance will not be disturbed on appeal unless the record discloses a clear abuse of discretion. Id. A trial court abuses its discretion if it acts in an arbitrary and unreasonable manner or when it acts without reference to any guiding rules or principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985).
A motion for continuance may not be granted "except for sufficient cause supported by affidavit, or by consent of the parties, or by operation of law." Tex. R. Civ. P. 251; O'Connor v. O'Connor, 245 S.W.3d 511,...
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