Robinson v. Risinger

• Decision Date: 17 February 1977
• Docket Number: No. 964,964
• Parties: Linda Risinger ROBINSON, Appellant, v. Frank RISINGER, Appellee.
• Court: Texas Court of Appeals

Page 762

548 S.W.2d 762

Linda Risinger ROBINSON, Appellant, v. Frank RISINGER, Appellee.

No. 964.

Court of Civil Appeals of Texas, Tyler.

Feb. 17, 1977.

Rehearing Denied March 17, 1977.

Second Motion for Rehearing Denied April 7, 1977.

Rex Kirby, Kirby & Kirby, Tyler, for appellant.

Henry L. McGee, Jr., Tyler, for appellee.

DUNAGAN, Chief Justice.

This is an appeal by Linda Risinger Robinson from an order entered on the 28th day of January, 1976, by the Court of Domestic Relations of Smith County, Texas, granting a motion to change custody filed by her former husband Frank Risinger on July 2, 1974, whereby the custody of Tim Risinger was changed from the mother to the father.

By a decree entered May 14, 1974, in the Court of Domestic Relations of Smith County, Texas, Linda Risinger as Petitioner was granted a divorce from Frank Risinger as respondent and named managing conservator of their only child, Tim Risinger.

On July 2, 1974, less than sixty days after the divorce judgment, respondent-appellee Frank Risinger filed his motion to modify the judgment alleging a material change of circumstances since May 14, 1974.

The trial court upon hearing appellee's motion to modify the divorce decree denied the motion on July 14, 1975.

On July 24, 1975, the appellee filed a motion for a new trial on his motion to modify. The trial court entered an order on the 4th day of September, 1975, granting appellee's motion for a new trial and setting aside his previous order denying said motion. Appellant contends in her brief that neither she nor her counsel were notified of this hearing. Appellee in his brief replies that appellant knew that her attorney of record was given written notice of the January 27, 1976, hearing by letter dated December 16, 1975. Neither of these statements is supported by the record.

On September 5, 1975, appellant Linda Risinger Robinson's counsel at the time filed a motion to set aside the trial court's order granting a new trial to appellee. The record does not reflect that this motion was ever presented to the court or acted upon.

On January 15, 1976, at 3:50 p. m. appellant's attorney at that time, Alvin N. Flynn, filed a motion with the court to withdraw as attorney for the appellant. On the same day, January 15, 1976, the court granted attorney Flynn's motion by a written order filed with the Clerk of the court at 4:05 p. m. Neither the motion to withdraw nor the order granting said motion states or even indicates that the appellant was aware of this action. There is no evidence in the record as to whether the appellant was ever notified that her attorney had withdrawn from the case.

The order permitting Mr. Flynn to withdraw recites that "He is hereby permitted to withdraw as attorney of record for respondent Frank Risinger." Since the record shows and it is undisputed that Mr. Flynn represented the appellant Linda Risinger Robinson, it is obvious that this was a typographical error and therefore he was permitted to withdraw as attorney for the appellant.

On January 22, 1976, appellee paid a jury fee and placed the case on the jury docket.

The record reflects that appellee's motion to modify was called for trial on January 27, 1976, at 10:00 a. m. At that time only appellee and his counsel were present and appellee announced ready for trial. Since neither appellant nor her counsel appeared, appellee (petitioner below) withdrew his request for jury trial and agreed to submission of the matter to the court. Apparently between 10:00 a. m. and noon on January 27, 1976, appellant was informed that the motion to modify had been called for trial and she was supposed to have appeared for the hearing. Appellant contacted the court during the lunchhour and was told that the trial would be delayed until 4:00 p. m. that same day. Appellant traveled to Tyler and was present without counsel in court at 4:00 p. m. After both parties announced ready, the trial judge dictated the following statements into the record:

" . . . Let the record show that in due course a jury demand was made in this case; and that in due course, this matter was set on the jury docket for trial at 10:00 o'clock AM today. And, that in due course, the matter was called. The Attorney for the Petitioner announced ready, and the Respondent was not present, nor was she represented by Counsel. Let the record further show that during the lunch hour, the Respondent contacted the Court by telephone, by long distance from, the Court presumed, Paris; and, the Court advised the Respondent at that time that the Court would hold off hearing the matter until 4:00 o'clock P.M. today. Let the record further indicate that at 4:00 o'clock, or thereabouts, the Respondent was present "That prior to the trial of this lawsuit, the Court personally advised the Respondent; that is, immediately prior, that this Court had control of its Judgment for a period of 30 days following the rendition of this Judgment, which the Court understands to be the law. The Court then understood this to be the law. That the Court further advised the Respondent that at this hearing or any other hearing where she was not represented, she was at a distinct and gross disadvantage. That the Court also advised the Respondent to obtain Counsel if she was not satisfied with the outcome of this hearing.

in the Courthouse, and that the Respondent is now present in the Courtroom.

"Let the record . . . also indicate, the Court did advise the Respondent, prior to this hearing, that the failure of a party to appear for trial, when a jury has been requested, is, according to the rules, a waiver of the right to trial by a jury, and the Court may proceed without a jury. Proceed, Counselor."

At the conclusion of this second hearing on appellee's motion to modify the judgment on January 27, 1976, the court entered its order signed on the 28th day of January, 1976, modifying the judgment of May 14, 1974, appointing the appellee as managing conservator of Tim Risinger and appointing Linda Risinger Robinson possessory conservator of said child. It is from this order that appellant appeals. No findings of fact or conclusions of law appears in the record and none was requested.

Appellant, subsequent to the hearing on January 27, 1976, employed new counsel who on her behalf on February 5, 1976, filed a motion for new trial. The record does not show any action on this motion or that it was ever presented to the trial judge.

Appellant by her first point of error contends that the trial court erred in proceeding to trial in the absence of her counsel and in doing so she was denied due process of law.

The record before us does not show when the motion to modify was set for hearing on January 27, 1976. Appellant's lawyer, Alvin N. Flynn, was permitted to withdraw from the case twelve days before the hearing. There is no legal or competent evidence that appellant was or was not notified that her lawyer had withdrawn from the case. Neither the motion to withdraw nor the order granting said motion recites that appellant was notified or was aware of such action.

There were several hearings before the trial court subsequent to the divorce judgment and appellant was represented by legal counsel in each of them, as she was in the divorce proceedings, with the exception of the hearing on appellant's motion to modify held on January 27, 1976. Apparently she was dissatisfied with the outcome of the hearing and followed the court's advice and hired her present attorneys, Kirby & Kirby, who filed her motion for new trial. Appellant not being a lawyer would not be expected to be apprised of her right at that time to demand a lawyer or ask for a continuance until she could obtain one.

These facts and circumstances would certainly create a serious doubt that the appellant was aware that her lawyer had withdrawn from the case or that she had notice that the motion to modify was set for hearing on January 27th until that morning. As a matter of fact, the facts and circumstances would strongly indicate that she did not know her attorney had withdrawn and had no notice of the hearing.

Considering all the facts and circumstances above set out, in the absence of any evidence that appellant had notice or was aware, prior to the January hearing, that her lawyer had withdrawn from the case, we cannot say that her failure to be represented at the hearing was due to her fault or negligence. The record does not show that the trial court inquired of appellant if she was aware her lawyer had withdrawn from the case and, if so, if she had employed This is not a case where the party litigant was represented by counsel and he thereafter failed to appear at the time of trial, having had prior notice of the setting.

new counsel and if not, why. Neither does the record show that the court inquired of her why she did not appear at 10:00 o'clock on the day of the hearing or if she had prior notice of the setting of the motion to modify for hearing at 10:00 a. m., January 27, 1976. The record does show that the trial court advised her prior to the hearing that it had control of its judgment for a period of thirty days following the rendition of this judgment; that where she was not represented at this hearing or any other hearing she was at a distinct and gross disadvantage; and for her to obtain counsel if she was not satisfied with the outcome of this hearing which she did.

"An attorney should not withdraw without considering carefully and endeavoring to minimize the possible adverse effect on the rights of his client and the possibility of prejudice to his client as a result of his withdrawal. Even when he justifiably withdraws, an attorney should protect the welfare of his client by giving due notice of his withdrawal, suggesting employment of other counsel, delivering to the client all papers and property to which the client is entitled, cooperating with counsel subsequently employed, and otherwise...