Sunday, July 8, 2007

No-Show for Prove-up and Failure to Object Dooms Appeal - Time and Again

Husband's appeal from divorce decree fails; complaint about lack of notice was waived; so was complaint about lack of agreement on terms of divorce; huband's attorney did not object and counsel's error is attributed to client; ineffective legal assistance claim won't fly in family court except where termination of parental rights is sought.

Hadeler v. Hadeler (Tex.App.- San Antonio, Jun. 27, 2007)(Stone)(preservation of error, waiver)

AFFIRMED: Opinion by Justice Stone
Before Chief Justice Lopez, Justices Stone and Speedlin)
Michael Alan Hadeler v. Marla Joy Pederson Hadeler
Appeal from County Court at Law of Starr County

From the County Court at Law, Starr County, Texas
Trial Court No. CC-05-312
Honorable Romero Molina, Judge Presiding
Opinion by: Catherine Stone, Justice
Sitting: Alma L. López, Chief Justice
Catherine Stone, Justice
Phylis J. Speedlin, Justice
Delivered and Filed: June 27, 2007


Michael Hadeler appeals the trial court's decision to grant the divorce petition of his former wife, Marla Hadeler. On appeal, Michael asserts the following appellate complaints: (1) the trial court erred when it failed to afford him the mandatory forty-five day notice of his final divorce hearing as required by Rule 245 of the Texas Rules of Civil Procedure; (2) the trial court erred in entering the judgment of divorce on the basis of an alleged agreement of the parties when he had not consented to the judgment; and (3) his trial lawyer failed to provide competent and effective representation during the divorce proceedings in violation of his constitutional right to due process. Because the issues in this appeal involve the application of well-settled principles of law, we affirm the trial court's judgment in this memorandum opinion under Texas Rule of Appellate Procedure 47.4 for the following reasons:

1. In his first issue, Michael argues that the trial court erred in failing to provide him with the
mandatory forty-five day notice prior to his final hearing. Rule 245 of the Texas Rules of Civil Procedure provides that "the court may set contested cases on written request of any party, or on the court's own motion, with reasonable notice of not less than forty-five days to the parties of a first setting for trial...." Tex. R. Civ. P. 245.

A party that receives untimely notice must file a motion for continuance or raise the notice complaint during the hearing to preserve error; any error resulting from the trial court's failure to provide the parties proper notice under Rule 245 is waived if a party proceeds to trial and fails to object to the untimely notice. In the Interest of J.(B.B.) M., A Minor Child, 955 S.W.2d 405, 408 (Tex. App.-San Antonio 1997, no writ).

In the present case, the trial court initially set the final divorce hearing for December 8, 2005, but Michael's counsel did not receive notice of this hearing until October 31, 2005. While the notice Michael received was less than the required forty-five days, nothing in the record shows that Michael or his attorney objected to the first trial setting because of insufficiency of notice. The final hearing was later reset two times and Michael did not request a continuance and did not make an objection concerning the sufficiency of the notice. Because he did not request a continuance on the grounds of late notice and because he failed to properly object to the untimely notice of the trial setting, Michael has not preserved this issue for appellate review and his first issue is overruled. See Tex. R. App. P. 33.1.

2. In his second issue, Michael argues that the trial court erred in entering a judgment of divorce on the basis of an alleged agreement between the parties because he did not agree to the judgment. He also contends that even assuming he had consented to the decree, he had the legal right to withdraw his consent at any time prior to the rendering of the judgment. Before we can determine if Michael properly consented to the decree or if he timely withdrew his consent to the agreement, we must determine whether he properly preserved error in the trial court. Our review of the record indicates that there is no evidence that Michael or his attorney objected to Marla's statements at the final hearing or to the proposed judgment, nor is there any evidence in the record evidencing Michael's desire to withdraw any consent that he had previously given to the agreement. (1)

A point on appeal based on a trial court's ruling on a motion, request, or objection must be supported by a showing in the record that the motion, request, or objection was presented to and acted upon by the trial court. Tex. R. App. P. 33.1(a); see Guyot v. Guyot, 3 S.W.3d 243, 246 (Tex. App.-Fort Worth 1999, no pet.). "It is the appellant's responsibility to preserve error for appeal by taking affirmative steps to ensure that all matters he may wish to appeal are timely and properly entered into the court record." Guyot, 3 S.W.3d at 248. Because an attorney is a representative of his client, an attorney's action is binding upon his client in all matters where by law the client is not specifically required to act for himself. See Fonseca v. State, 163 S.W.3d 98, 101 (Tex. App.-Fort Worth 2005, pet. ref'd) (citing Am. Home Assur. Co. v. Rodriguez, 749 S.W.2d 897, 899 (Tex. App.-San Antonio 1988, no writ) (stating that the attorney-client relationship is one of principle and agent, and the acts of one ordinarily binds the other)).

In this case, Marla was the only witness to testify at the final divorce hearing; Michael was not present but was represented by his counsel. Marla stated that she filed for divorce, had reviewed and discussed the contents of the divorce decree both with Michael and his lawyer, and was positive that Michael had consented to the contents in the decree. Michael's attorney did not object to any of Marla's statements and there is no evidence anywhere in the record that Michael or his attorney made an objection concerning his consent to the divorce decree. While Michael was not present at the final divorce hearing, his attorney's actions at the hearing are binding upon him. We therefore hold that Michael did not preserve error for appeal and overrule Michael's second issue.

3. In his third issue, Michael argues that his trial lawyer failed to provide effective representation during the divorce proceeding. Michael claims that his trial lawyer did not keep him properly informed of the trial date, failed to make proper objections, and failed to properly represent him at the final divorce hearing. However, with the exception of parental termination cases, the doctrine of ineffective assistance of counsel does not extend to civil cases. See Cherqui v. Westheimer St. Festival Corp., 116 S.W.3d 337, 343 (Tex. App.-Houston [14th Dist.] 2003, no pet.). Accordingly, we overrule Michael's third issue.
The order of the trial court is affirmed.

Catherine Stone, Justice

1. Had Michael consented to the content of the decree and later decided to withdraw his consent, he was required to do so before the judgment was rendered. See S & A Restaurant Corp. v. Leal, 892 S.W.2d 855, 857 (Tex. 1995).

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