Tran v. Nguyen
| Decision Date | 24 November 2015 |
| Docket Number | NO. 14-14-00640-CV,14-14-00640-CV |
| Citation | 480 S.W.3d 119 |
| Parties | Tuan Anh Tran, Appellant v. Sheryn D. Nguyen, Appellee |
| Court | Texas Court of Appeals |
Japaula Carmile Kemp, Houston, TX, for Appellee.
Tuan Anh Tran, Richmond, TX, pro se.
Panel consists of Chief Justice Frost and Justices Jamison and Busby (Frost, C.J., dissenting).
MAJORITY OPINION
Tuan Anh Tran appeals from the final decree of divorce ending his common law marriage to Sheryn D. Nguyen. In seven issues, Tran contends that the trial court erred in (1) denying him visitation with the two children of the marriage, (2) failing to provide specific terms and conditions governing his right to possession or access, (3) denying his motion for continuance, (4) calculating his child support obligation, (5) failing to find that Nguyen committed fraud, (6) making its division of community and separate property, and (7) entering a decree that was inconsistent with its oral rendition. We affirm.
Tran and Nguyen began holding themselves out as married in October 1998. They have two children together, daughters K.N. and P.T., and Nguyen has one child from a previous relationship, daughter J.T. At the time of trial, J.T. was seventeen years old, K.N. was fifteen, and P.T. was thirteen. In 2012, Tran pleaded guilty to sexually assaulting J.T. when she was thirteen years old. Pursuant to a plea bargain agreement, Tran was sentenced to twelve years in prison for the offense. Tran and Nguyen separated in 2010 after his crime was revealed. Nguyen subsequently filed a petition for divorce, and Tran filed a counter-petition.
At the beginning of trial, Tran told the court that he was not ready to proceed and requested additional time to obtain an attorney. According to Tran, he and members of his family had contacted several attorneys but had yet to receive any responses. The trial judge asked Tran about his efforts to obtain counsel before proceeding to trial on the merits.
Nguyen testified regarding Tran's conviction, noting that the younger children were aware of the nature of the crime. She said that P.T. does not currently speak or write to Tran, and K.N., although initially maintaining a relationship with him after his incarceration began, recently stopped communicating with Tran. Nguyen stated that during their separation, Tran either took most of his personal possessions from the family home or the possessions were delivered to him. She said that he has not requested anything he has not received. At the time of trial, Nguyen was in possession of Tran's wedding ring, but she said that he could have it. She also noted that they owned three vehicles.1 Nguyen testified that the community property home appraised for $290,000 and that they owed $188,988 on the mortgage. She explained that the parties each maintained debts solely in their own names and had no joint debt. She stated that she had been paying her debt down during their separation and had been paying the mortgage, insurance, and taxes on the house.
According to Nguyen, Tran was a banker prior to his incarceration and made an average annual salary of between $55,000 and $70,000. She further stated that if he were not in prison, Tran would be earning about $5,000 a month or $3,600 a month net after taxes. Nguyen said that she was released by her last employer when Tran sent a letter to the employer accusing Nguyen of fraud. She asked for $900 a month in child support and requested that she be awarded all of the equity in the home as a lump sum child support payment because Tran would be unable to pay any support over the next six to twelve years due to his incarceration.
During his cross-examination of Nguyen, Tran asked her whether she had impersonated him by using his email account. In response, Nguyen declined to answer, citing the Fifth Amendment. Tran additionally questioned Nguyen regarding his virtues as a father. She responded that he had a close relationship with their children prior to his offense but also that he was "doing [his] own thing a lot of the time." She said that she has talked to K.N. and P.T., the children of the marriage, about visiting him in prison but they do not want to go. She acknowledged that, prior to his incarceration, Tran exercised periods of possession with the children.
Tran testified that he had given Nguyen $18,000 in checks since their separation but that he currently had no 401K, no stocks, and no bonds. He estimated their home was worth about $300,000.
At the conclusion of trial, the judge granted the divorce on the grounds of Tran's felony conviction. See Tex. Fam. Code § 6.004. The judge further named Nguyen as K.N. and P.T.'s sole managing conservator and Tran as possessory conservator, but limited his rights to those contained in section 153.073(8) of the Texas Family Code. Tex. Fam.Code § 153.073(a)(8) (). The judge stated that in light of Tran's conviction, it was not in the children's best interest that he be granted other specific rights or duties or specified access.2 The judge entered a protective order requiring Tran to stay 500 yards from the children's residence or school or any location of the children of which he was aware.
The court acknowledged that Tran had paid Nguyen $18,000 for "general family support" but noted that this amount was about enough to cover half of the house payments Nguyen made during their separation and did not constitute payment of interim child support. The judge granted Nguyen's proposed division of property and found it necessary to award her Tran's interest in the house as lump sum child support.3 In doing so, the judge emphasized that appellant would not be eligible for parole until any child support obligation had expired. The judge speculated that, had he not been incarcerated, Tran would have been required to pay $900 for 36 months (until K.N. came of age) and then $720 for an additional twelve months, a total of $41,040, which the trial court calculated to have a present value at the time of trial of $35,000. The court further stated that Tran's share of the equity interest in the home was less than $35,000. The judge additionally stated that the award to Nguyen of Tran's share of the home equity would satisfy Tran's child support obligation. The judge further awarded Nguyen the vehicles, mentioning Tran had no use for them in prison, and assigned all personal property to the one then in possession of it and all debts to the person in whose name the debt was held.
The trial judge subsequently signed a final decree of divorce generally in keeping with the earlier oral pronouncements. In regards to possession or access by Tran, the court stated in the decree "that it is in the best interest of the children to not make any ORDERS granting [Tran] possession of or access to the children due to [his] conviction for family violence." The court ordered Tran to pay child support in the amounts set forth above but further stated that the child support obligation was satisfied by the award to Nguyen of Tran's share of the community real property. The court further ordered Tran to make additional payments to Nguyen for the children's medical support of $324 a month. Lastly, the court ordered each party to pay their own attorney's fees, if any, as part of the division of the marital estate.
We begin with Tran's third issue, in which he contends that the trial court abused its discretion in denying his motion for a continuance. As described above, on the day of trial, Tran appeared, represented to the court that he was not ready, and orally requested additional time to find an attorney. He further explained to the court that he and members of his family had contacted several attorneys but had yet to receive any responses. The trial court effectively overruled Tran's request by proceeding with trial. See Tex. R. App. P. 33.1(a)(1)(A) ().
We review a trial court's denial of a motion for continuance for an abuse of discretion. See State v. Wood Oil Distrib., Inc., 751 S.W.2d 863, 865 (Tex.1988). A trial court abuses its discretion when it acts unreasonably or arbitrarily, or without reference to any guiding rules or principles. Barras v. Barras, 396 S.W.3d 154, 164 (Tex.App.–Houston [14th Dist.] 2013, pet. denied). We may not substitute our judgment for the trial court's judgment unless the trial court's action was so arbitrary that it exceeded the bounds of reasonable discretion. See Bowie Mem'l Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex.2002) ; Zagorski v. Zagorski, 116 S.W.3d 309, 313–14 (Tex.App.–Houston [14th Dist.] 2003, pet. denied).
In civil cases in which the absence of counsel has been urged as a ground for continuance, courts generally require a showing that the failure to be represented at trial was not due to the party's own fault or negligence. See State v. Crank, 666 S.W.2d 91, 94 (Tex.1984) ; In re S.L.L., No. 09–09–00429–CV, 2011 WL 1224983, at *1 (Tex.App.–Beaumont Mar. 31, 2011) (mem.op.); see also Tex.R. Civ. P. 253 ()4
There is no indication in the record that, prior to his request for more time on the day of trial, Tran made any mention of needing more time to find an attorney or prepare for trial. Indeed, Tran had filed his own timely answer, counter-petition, and other pleadings and responses without once indicating he desired to obtain counsel or that he was having difficulty doing so. Moreover, the court twice had provided Tran a "Pro Se Notice" advising him to seek legal counsel if unsure of what to do.5
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