Zuniga v. Zuniga, 04-98-00474-CV

• Decision Date: 15 December 1999
• Docket Number: No. 04-98-00474-CV,04-98-00474-CV
• Parties: (Tex.App.-San Antonio 1999) Mario G. ZUNIGA, Appellant v. Elsa ZUNIGA, Appellee
• Court: Texas Court of Appeals

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13 S.W.3d 798 (Tex.App.-San Antonio 1999) Mario G. ZUNIGA, Appellant
v.
Elsa ZUNIGA, Appellee No. 04-98-00474-CV Court of Appeals, Fourth District of Texas December 15, 1999

From the 57th Judicial District Court, Bexar County, Texas Trial Court No. 96-CI-10507 Honorable John D. Gabriel, Jr., Judge Presiding

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Copyrighted Material Omitted

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Before Hardberger, Chief Justice and Lopez, and Angelini, Justices.

Opinion

Phil Hardberger, Chief Justice

Mario G. Zuniga ("Mario"),¹ an incarcerated individual, appeals the entry of a final decree of divorce. In his sole point of error, Mr. Zuniga asserts that the trial court committed error by entering a post-answer default judgment in favor of his wife, Elsa Zuniga ("Elsa"), as to the decree of divorce. We reverse the decree of divorce and remand the case to the trial court.

Background

The following events are relevant to the case:

1) July 19, 1996: Elsa files Original Petition for Divorce.

2) January 9, 1998: Mario files "Dispute Petition for Divorce."

3) January 9, 1998: Mario files Original Answer.

4) February 23, 1998: Mario files Motion for Issuance of Bench Warrant and Motion for Appointment of Counsel.

5) March 20, 1998: Mario files Respondent's Original Answer.

6) March 23, 1998: Trial Court holds hearing on Elsa's Original Petition for Divorce. Following testimony by Elsa, the court stated, in part:

Court has reviewed the file. Mr. Zuniga was served, did file some type of answer. He has not appeared today and has defaulted on this matter. Based on the testimony by Mrs. Zuniga, I will go ahead and grant the divorce today and grant the relief that's been requested, including the visitation of over at [sic] KidShare.

7) April 1, 1998: Mario files Motion for Issuance of Bench Warrant and Motion for Appointment of Counsel.

8) April 6, 1998: Mario files Notice of Appeal.

In his sole point of error, Mario claims that the trial court erred in granting a post-answer default judgment. He asserts that he was unable to be present at the divorce hearing due to the trial court's failure to grant a bench warrant that would have allowed him to attend the trial. This would be difficult to argue against as he was in jail at the time. Elsa responds that the trial court did not err in entering judgment when Mario did not appear at trial because: 1) the record on appeal supports the judgment, 2) there is no reason to conclude that the outcome of the trial would have been different if Mario had appeared, and 3) Mario "did not offer to do equity by offering to reimburse [Elsa] for her expenses to take the default judgment."

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Discussion

1. Standard of Review

We review the trial court's entry of judgment under the abuse of discretion standard. "An abuse of discretion will be found only when the trial court's action is arbitrary, unreasonable, or without reference to guiding rules and principles." Washington v. McMillan, 898 S.W.2d 392, 394 (Tex. App.-San Antonio 1995, no writ); see Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985).

2. Access to Courts

Individuals who are incarcerated do not automatically lose their access to the courts as a result of their incarcerated status. See Hudson v. Palmer, 468 U.S. 517, 523 (1984). Incarcerated individuals, whether they are defendants or plaintiffs in civil actions, do not have an absolute right to appear in person. See Pruske v. Dempsey, 821 S.W.2d 687, 689 (Tex. App.-San Antonio 1991, no writ); Birdo v. Holbrook, 775 S.W.2d 411, 414 (Tex. App.-Fort Worth 1989, writ denied); Brewer v. Taylor, 737 S.W.2d 421, 423 (Tex. App.-Dallas 1987, no writ). This court has already reconciled the tension between the inmate having an absolute right to access the courts and the inmate not having a right to appear in person. In addressing these competing demands, we have addressed the importance of a trial court giving consideration to an incarcerated individual's desire to appear in person. See Pruske, 821 S.W.2d at 689; see also Byrd v. Attorney General, 877 S.W.2d 566, 569 (Tex. App.-Beaumont 1994, no writ). In so doing, this court has articulated several factors that the trial court should consider in attempting to "strike a balance that is fundamentally fair:"

a) the cost and inconvenience of transporting the prisoner between his place of incarceration and the courtroom;

b) the security risk and potential danger to the court and public of allowing the prisoner to attend court;

c) whether the prisoner's claims are substantial;

d) whether a determination of the matter can reasonably be delayed until the prisoner is released;

e) whether the prisoner can and will offer admissible...