Reversed and Remanded and Opinion Filed July 31, 2018 

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In The 

## Court of Appeals Fifth District of Texas at Dallas
No. 05-17-00282-CV IN THE INTEREST OF L.S.B., A CHILD On Appeal from the 469th Judicial District Court Collin County, Texas Trial Court Cause No. 469-51173-2010



### MEMORANDUM OPINION Before Justices Francis, Brown, and Stoddart Opinion by Justice Francis Kenneth Leo Buholtz appeals the trial court’s rulings on multip le motions seeking postdivorce relief. Because we conclude the trial court abused its discretion by refusing to allow appellant to appear by telephone, we reverse the trial court’s orders and remand for further proceedings. Appellant is an inmate in a Virginia federal prison. In Decemb er 2012, appellant’s petition for divorce was granted in the 219 th Judicial District Court in Collin County; the final decree of divorce was signed in May 2013. Several months after his divor ce, appellant filed a number of motions, including a motion for enforcement of the divorce decr ee and a motion for order to show cause why his ex-wife should not be held in contempt. Appellan t also filed a motion, supported–2– by his affidavit, requesting to appear by telephone at a hearin g on the motions. 1 He explained that as a federal prison inmate, he can only obtain telephone access to appear at a co urt proceeding by court order. The motions were pending when the case was transf erred to the 469 th Judicial District Court more than one year later. After the transfer, appellant requested the trial court rule on his pending motions, which included his motion to appear by telepho ne. The trial court then appointed an attorney ad litem to represen t appellant’s ex-wife, who had been cited by publication but had not answered nor made an appearan ce. Appellant filed additiona l motions, one of which sought to modify child support. When th e trial court did not rule on his motions, appellant sought a writ of mandamus from this Court. This Court noted that some of the motions had been pending for more than three years, conditiona lly granted the writ, and orde red the trial court to rule on the motions. In re Buholtz , No. 05-16-01312-CV, 2017 WL 462361, at *1 (Tex. App.—Dallas J an. 31, 2017, orig. proceeding) (mem. op.). In compliance with our order, the trial court set the motions f or hearing on February 21, 2017. The court also ordered appel lant’s wife to appear at the hearing to show cause why the relief in his motion should not be granted. On the day of the hearing , the trial court had the bailiff call appellant’s name at the door at the beginning and the conclusio n of the hearing. Appellant did not appear. Court-appointed counsel for appellant’s ex-wife inform ed the trial court that he could not locate her and then argued agains t granting appellant’s various motions. The trial court denied the motions, including appellant’s re quest to appear by telephone. This appeal followed. In his first issue, appellant complains the trial court abused its discretion by denying his motion to appear by telephone. 2 Although an inmate does not have an absolute right to appear

1 After this appeal was submitted, we requested the Collin Count y district clerk to supplement the appellate record with appell ant’s motion to appear by telephone, and the clerk provided the motion but did not include the affidavit filed in support of the motion. The affidavit, however, was included in the record of a pre vious original proceeding involv ing this case. See In re Buholtz , No. 05-16-01312-CV, 2017 WL 462361 (Tex. App.—Dallas Jan. 31, 2017, orig. proceeding).
2 Appellant also asserts that he did not receive notice of the h earing until five hours after the hearing ended. We need not a ddress this complaint given our disposition of the denial of motion to appe ar by telephone.–3– personally in court in civil proceedings, he cannot be denied a ccess to the courts simply because he is incarcerated. See In re Z.L.T. , 124 S.W.3d 163, 165 (Tex. 2003). “The right of a prisoner to have access to the court entails not so much his personal prese nce as the opportunity to present evidence or contradict the evidence of the opposing party.” In re R.C.R. , 230 S.W.3d 423, 426 (Tex. App.—Fort Worth 2007, no pet.) (quoting Dodd v. Dodd, 17 S.W.3d 714, 717 (Tex. App.— Houston [1st Dist.] 2000, no pet.), disapproved of on other grounds by In re Z.L.T., 124 S.W.3d at 166). Thus, if a court determines a pro se inmate in a civil a ction is not entitled to leave prison to appear personally in court, the i nmate should be allowed to pro ceed by affidavit, deposition, telephone, or other means. Boulden v. Boulden , 133 S.W.3d 884, 886–87 (Tex. App.—Dallas 2004, no pet.). A trial court abuses its discretion if it effe ctively bars the inmate from presenting his case. Armstrong v. Randle, 881 S.W.2d 53, 57 (Tex. App.—Texarkana 1994, writ denied). Given the record before us, we conclude that, in lieu of person al appearance, appellant’s “appearance” by telephone would ha ve been one effective means f or him to appear at the hearing and present evidence on his motions. By denying him that means , and not providing him with any other means of proceeding, we conclude the trial court abused i ts discretion. See Johnson v. Handley , 299 S.W.3d 925, 929 (Tex. App.—Dallas 2009, no pet.). In rea ching this conclusion, we make no comment on the merits o f appellant’s motions. We su stain the first issue. We reverse the trial court’s o rders dated February 21, 2017 den ying appellant’s motions and remand this cause for further proceedings consistent with t his opinion.

170282F.P05 /Molly Francis/ MOLLY FRANCIS JUSTICE–4– 

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Court of Appeals Fifth District of Texas at Dallas JUDGMENT

IN THE INTEREST OF L.S.B., A CHILD,

No. 05-17-00282-CV V. On Appeal from the 469th Judicial District Court, Collin County, Texas Trial Court Cause No. 469-51173-2010. Opinion delivered by Justice Francis; Justices Brown and St oddart participating. In accordance with this Court’s opinion of this date, the tria l court’s orders dated February 21, 2017 denying Kenneth Leo Buholtz’s motions are REVERSED and this cause is REMANDED to the trial court for further proceedings cons istent with thi s opinion. It is ORDERED that each party bear its ow n costs of this appeal.
Judgment entered July 31, 2018.