In The
Court of Appeals
Ninth District of Texas at Beaumont
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NO. 09-06-445 CV
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DWIGHT HARRISON, Appellant
V.
JACQUELINE HARRISON, Appellee
Jefferson County, Texas
Trial Cause No. C-182,907
Dwight Harrison appeals pro se the trial court's amended judgment of divorce from Jacqueline Harrison. We affirm.
Jacqueline Harrison, appellee, filed a petition for divorce from Dwight in 2002. The trial court held a hearing on the matter and Jacqueline failed to appear. On November 7, 2003, the trial court signed a final divorce decree. On December 5, 2003, Jacqueline filed an "Agreed Motion for New Trial" asserting that she had no notice of the October 21, 2003 hearing. On December 10, 2003, she filed an amended motion for new trial which was identical to the prior motion for new trial except it was titled "Amended Motion for New Trial" and included exhibits. On December 17, 2003, the trial court granted her motion for new trial. The trial court held a hearing and signed a final divorce decree on April 25, 2006. On May 24, 2006, Dwight filed a motion for new trial stating that the trial court erred in dividing the property. The trial court granted Dwight's motion for new trial, and after hearing evidence, signed an amended judgment awarding Dwight additional assets.
On appeal it appears Dwight is arguing four issues. First, he states that Jacqueline's motion for new trial was granted more than thirty days after the trial court signed the first divorce decree. When a party files a motion for new trial within thirty days of a judgment, the trial court has plenary power for seventy-five days following the date the court signed the judgment to act on that motion. See Tex. R. Civ. P. 329b(c). Jacqueline's original motion for new trial was filed within thirty days of the original judgment. Her amended motion for new trial was filed more than thirty days after the trial court signed the original judgment, but while the trial court still had plenary power. See id. When an original motion for new trial is timely filed but an amended motion for new trial is filed after thirty days but while the trial court still has plenary power, the trial court has discretion to consider the untimely amended motion in granting a new trial. See Kalteyer v. Sneed, 837 S.W.2d 848, 851 (Tex. App.--Austin 1992, no writ ) (citing Homart Dev. Co. v. Blanton, 755 S.W.2d 158, 159-60 (Tex. App.--Houston [1st Dist.] 1988, orig. proceeding)). The trial court here still had plenary power to grant Jacqueline's motion for new trial. See Tex. R. Civ. P. 329b(c). Issue one is overruled.
Second, Dwight seems to argue that because he was indigent, the trial court should have appointed counsel to represent him in the matter when he requested counsel during one of the hearings. We review a trial court's failure to appoint trial counsel in a civil case for an abuse of discretion. See Tex. Gov't Code Ann. § 24.016 (Vernon 2004); Gibson v. Tolbert, 102 S.W.3d 710, 712-13 (Tex. 2003). A civil litigant has no general constitutional right to appointed counsel. (1) See Sandoval v. Rattikin, 395 S.W.2d 889, 893-94 (Tex. Civ. App.--Corpus Christi 1965, writ ref'd n.r.e.). "[I]n some exceptional cases, the public and private interests at stake are such that the administration of justice may best be served by appointing a lawyer to represent an indigent civil litigant." Travelers Indem. Co. of Conn. v. Mayfield, 923 S.W.2d 590, 594 (Tex. 1996). Whether exceptional circumstances warranting the appointment of counsel exist is determined on a case-by-case basis. Gibson, 102 S.W.3d at 713. We cannot conclude that this, a divorce case, constitutes exceptional circumstances that requires the appointment of counsel or that the trial court abused its discretion by failing to make such an appointment. We overrule Dwight's second issue.
Third, it appears Dwight contends the trial judge should have been recused from the case because he was biased or incapable of being impartial. Dwight maintains the trial judge "stated in open court that he did not like me" and that "I had no respect for the court system." Dwight provides no record references to the trial judge's alleged comments, and the only comments by the trial judge that we can perceive as the comments Dwight complains of occurred during the hearing on Dwight's motion for new trial:
THE COURT: . . . [Dwight's counsel], in your motion for new trial, you allege that [Dwight]'s always been indigent and he's never had an attorney. That isn't the case. Of course, you got into it late; but he did have an attorney. He was represented. His attorney and he couldn't get along and the record shows that he didn't cooperate with anybody or anything and his attorney got off of the case. Then I allowed them, what, a year?
[JACQUELINE'S COUNSEL]: Yes, Your Honor.
THE COURT: An entire year to hire an attorney. I was extremely patient with him, did everything in my power to try to be fair to him; but he's a difficult person to deal with, to say the least. I will go ahead and let you present your motion.
In Dow Chemical Company v. Francis, the Texas Supreme Court explained what circumstances necessitate recusal based on a judge's comments:
The United States Supreme Court . . . has determined that "judicial rulings alone almost never constitute a valid basis for a bias or partiality motion," and opinions the judge forms during a trial do not necessitate recusal "unless they display a deep-seated favoritism or antagonism that would make [a] fair judgment impossible. Thus, judicial remarks during the course of a trial that are critical or disapproving of, or even hostile to, counsel, the parties, or their cases, ordinarily do not support a bias or partiality challenge." Further, "[n]ot establishing bias or partiality . . . are expressions of impatience, dissatisfaction, annoyance, and even anger. . . . A judge's ordinary efforts at courtroom administration -- even a stern and short-tempered judge's ordinary efforts at courtroom administration -- remain immune." In short, a trial court has the inherent power to control the disposition of cases "with economy of time and effort for itself, for counsel, and for litigants."
46 S.W.3d 237, 240 (Tex. 2001) (citations omitted). Based on our review of the record, Dwight has failed to show that the trial judge's comments necessitated his recusal. We overrule Dwight's third issue.
Last, it appears Dwight believes the trial court abused its discretion in the distribution of assets because "[The trial judge] did [sic] address community debt, retirement benefits for defendant nor did he address medical coverage for defendant who is disable [sic]." The Texas Family Code requires the trial court to divide a marital estate in a manner the court deems "just and right," having due regard for the rights of the parties. Tex. Fam. Code Ann. § 7.001 (Vernon 2006). A divorce court generally may exercise broad discretion in dividing the estate. Schlueter v. Schlueter, 975 S.W.2d 584, 589 (Tex. 1998); Ohendalski v. Ohendalski, 203 S.W.3d 910, 914 (Tex. App.--Beaumont 2006, no pet.). Absent evidence showing an abuse of discretion, the trial court's division of a marital estate will not be disturbed on appeal. See Murff v. Murff, 615 S.W.2d 696, 698 (Tex. 1981). A court abuses its discretion when it acts without reference to any guiding rules or principles, or alternatively, when its acts are arbitrary or unreasonable. Worford v. Stamper, 801 S.W.2d 108, 109 (Tex. 1990). A "party attacking the property division bears the heavy burden of showing that the trial court's property division was not just and right." Pletcher v. Goetz, 9 S.W.3d 442, 446 (Tex. App.--Fort Worth 1999, pet. denied) (op. on reh'g).
"When the trial court finds that its property division is just and right regardless of any mischaracterization of the property, even though the value of the property mischaracterized is great, the mischaracterization does not affect the trial court's just and right division of the property." Pace v. Pace, 160 S.W.3d 706, 716 (Tex. App.--Dallas 2005, pet. denied). An appellant must not only demonstrate the trial court mischaracterized the property at issue, but must also conduct a harm analysis to demonstrate "how the purported mischaracterization caused the trial court to abuse its discretion or that it had more than a de minimus impact on a just and right division of the community estate." See id. (citing Vandiver v. Vandiver, 4 S.W.3d 300, 302 (Tex. App.--Corpus Christ 1999, pet. denied)).
Dwight failed to bring his arguments regarding the community debt and medical coverage to the trial court's attention and failed to preserve error as to those items. See Tex. R. App. P. 33.1(a); Byrnes v. Byrnes, 19 S.W.3d 556, 561 (Tex. App.--Fort Worth 2000, no pet.). In his motion for new trial, which the trial court granted, he stated he was entitled to a portion of Jacqueline's retirement benefits. Regardless of whether he preserved error as to the community debt, medical coverage, and retirement benefits, Dwight fails to show on appeal that the trial court mischaracterized the property and that the mischaracterization caused the trial court to abuse its discretion or that the mischaracterization had more than a de minimus impact on the property division. To the extent he is arguing on appeal that the trial court denied him the opportunity to present evidence, we disagree. Dwight had the opportunity to present evidence at the hearing on the motion for new trial. Furthermore, he fails to show on appeal any evidence that he claimed the trial court did not consider. Dwight's fourth issue is overruled. We affirm the trial court's amended judgment.
AFFIRMED.
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CHARLES KREGER
Justice
Submitted on August 7, 2007
Opinion Delivered March 13, 2008
Before McKeithen, C.J., Gaultney and Kreger, JJ.
1. Cases involving the juvenile delinquency, termination of parental rights, and court-ordered mental health services are exceptions to this general rule. See Tex. Fam. Code Ann. §§ 51.10, 107.013 (Vernon Supp. 2007); Tex. Health & Safety Code Ann. § 574.003 (Vernon 2003). None of the exceptions apply here.