### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-10-00261- CV

Art hur Bogd any, App ellant

v. Ladon na Loi s Ham m ett , Appellee

F ROM TH E DISTRI CT COURT O F WI LLIAM SO N COUNTY , 425 TH JUDICI AL DISTRICT NO. 09- 1806 -F 425, H ONO RAB LE JO HN MCM ASTER, JUDGE P RESIDING

M E M O R A N D U M O P I N I O N

I n this appea l from a d ivorce decr ee, appellant Arthur Bog dany challeng es the trial court’s denial of his pro se motion for continuance and the trial court’s awa rd of attorney ’s fee s ag ainst him. Be cause we conclude that the trial court did not abuse its discretion in either ruling , we aff irm the dec ree .

BACK GR OUND

Bog dany and appellee L adonna L ois Hammett wer e marrie d in September 2000. 1 They initially lived in a house owned by Bog dany but moved to a house on prope rty owned by the Kurtz Fa mily Trust in 2004. Fr om 2004 to June 2009, the parties lived on the trust’s proper ty rent fre e, and Bog dany perf

ormed work, including maintenanc e and repa irs, on other renta l proper ties

The divorce decr ee g rante d appellee ’s reque st to chang e her name to L adonna L oi s 1 Hammett. Her

name pr ior to the divorce was L adonna B og dany

.owned by the trust. The Kurtz Family Trust was formed in 1982 and , d u ring the rele vant time

period, Ha

mmett’s mother was the be nefic iary of the trust and H ammett was a trustee. I n J une 2009, Hammett filed an orig inal petition for divorce

. Around that time, the parties also enter ed into written ag ree ments dividing their household items, car s, and bank acc ounts, but they wer e unable to resolve the division of cer tain cer tificates of deposit and a dispute that they had conce rning the work that Bog dany had perf ormed on the trust’s renta l proper ties. I n his answe r and counte rpetition for divorc e, B og dany soug ht a disproportionate share of the c ommunity estate and re imbursement to the community estate f or the va lue of his work on the renta l properties. The final hear ing was set for Octo b er 2 9 , 2 0 09. Bog dany filed a motion for continuance from the trial setting based upon medical issues that his attorney ’s mother was having and the need to c onduct additional discover y . After a hea ring on October

16, 2009, the t rial court g rante d the motion and re s et the trial for J anuar y 5, 2010. Bog dany did not persona lly attend the October hear ing. On De cember 1, 2009, Bog dany ’s attorney filed a motion to withdraw beca us e she was “unable to ef

fe cti vely communicate” with him “in a manner consistent with g ood attorney -client rela tions.” She had sent Bog dany copies of her motion to withdraw by cer tified mail on November

23, 2009, to a post office box and to the phy sical addr ess of the house on the trust’s proper ty wher e the pa

rties had pr eviously

been living , as we ll as leaving him messag es on his cell phone. The trial cou rt h ea rd t h e motion on Dec ember 2, 2009; Bog dany was not prese nt for the hear ing. At the hear ing, Bog dany ’s attorney stated that she had attempted to contac t him by leaving

numerous messag es on his cell phone beca use s h e neede d his input to respond to outstanding

2discovery reque sts but that she had not had any res p o nse from him since befor e the hear ing in

October on the motion for continuance

. She stated that she mailed a copy of the mo t i o n t o t h e addre ss of the house on the tr ust’s proper

ty beca use it was B og dany ’s last known addre ss. He did not provide her with a new addre ss afte r he moved. She also advised the trial court that she did not know his addre ss at the time of the hear ing and that, althoug h she had attempted to locate him, she had bee n unsucce ssful in her ef forts. The tr ial court g rante d her motion to withdraw. Bog dany filed a pro se verifie d motion for continuance on J anuar y 4, 2010, from the trial setting the following day

. He stated that he did not rec eive notice of his attorney ’s motion to withdraw u n t i l De cembe r 22, 2009, and that he first lear ned of the J anuar

y 5th trial setting on Dec ember 29, 2009. After lear ning of the date, he states that he was “dilige nt in attempting to find [an] attorney ” and tha t he had f ound one that would re prese nt him but not without a continuanc e. Attache d to his motion wer e copies of his former attorney ’s letter, dated November 23, 2009, a copy of the cer tified mail rec eipt dated the same date, and n o t i ce s of attempted delivery of the mail addre ssed to the post office box on November 30, Dec ember

1, and De cembe r 18. On J an u ar y 5 , 2010, the trial court hear d and denied Bog dany ’s motion for continuance and t h en p ro ce ed ed with the final hear ing with Bog dany repr esenting himself. I n addition to the parties, Hammett’s attorney and an attorney hired by the t ru s t testified conce rning incurre d attorney ’s fee s, and an attorney specia liz ing in trusts testified conce rning the Kurtz Family Trust. The evidenc e was undisputed that, during their marria g e, Bog dany and Hammett did not pay rent to live on the proper

ty owned by the trust and that Bog dany was unemploy ed, but that Bog dany perf ormed work on the renta l proper ties owned by the trust during that time period without rec eiving

3compen s ation. Hammett testified conce rning the parties’ ag ree ment to divide their proper ty , her proposed division of the cer tificates of deposit, their living expenses during their marria g e, the work
t hat Bog dany perf

ormed on the trust proper ties, and her duties as the trustee of the trust. S h e testified that, as the trustee, she paid her mother’s living expenses out of the trust assets. As to the parties’ livi n g expenses during their m arr iag e, she testified t hat s he contributed more than $2,200 and Bog dany contributed “a littl e less than a thousand” a month from 2004 until they wer e separ ated. Bog dany testified conce rning the work that he perf ormed on the renta l proper ties of the trust and to his opinion that the trust was a “ sham.” The attorney specia liz ing in trusts testified t hat Hammett “has no rig ht of owner ship” of the trust assets, that it is a separ ate entity , and that Hammett’s mother was the be nefic iary

.

At the close of the evidenc e, the trial court g rante d the div o rc e, d i v i ded the community estate of the parties, and order ed Bog dany t o pay $11,050 in attorney ’s fee s incurre d by Hammett. Bog dany filed a motion for new trial that was overr uled by opera tion of law. This appea l followed.

ANALYSIS

I n two issues, Bog dany

contends that the trial court err ed in de ny ing his motion for continuance and subsequently awa rding Hammett attorney ’s fee s. We revie w both ruling s under an abuse of discretion standard. See Villegas v. Carter , 711 S.W .2d 624, 626 (Tex. 1986); Murf f

v. Mu r f f , 615 S.W .2d 696, 699 (Tex. 1981); Mandell v. Mandell , 310 S.W .3d 531, 540 (Tex. App.—For

t Worth 2010, pet. denied). The test for a buse of discr etion is “whethe r the court acte d

4without ref ere nce to any g uiding rules and principles.” Downer v. Aquamarine Operators, Inc ., 701 S.W .2d 238, 241-42 (Te x . 1985).

I n his first issue, Bog dany contends that the t ri al court err ed in deny ing his motion for continuance of the trial based upon his delay ed notice of h i s at t o rn ey ’s withdrawa l and his subsequent lack of repr esenta tion. When the g round for continuance is the withdrawa l of counsel, the movant must show that the fail u re t o be repr esente d at trial was not due to his own fault or neg lige nce. See Villegas , 711 S.W .2d at 626; State v. C rank , 666 S.W .2d 91, 94 (Tex. 1984); see also Tex. R. Civ. P. 253 (“[A]bsence of counsel will not be g ood cause for a continuance

. . . when called for trial, except it be allowed in the discretion of the court, upon cause shown or upon matters within the knowledg e or information of the judge to be stated on the rec ord.”)

. Bog dany contends that his la ck of repr esenta tion wa s not due to his own fault or neg lige nce beca use he only rec eived written notice of

his former a

ttorney ’s motion to withdraw on Dec ember 22 and notice of the trial setting on Dec ember 29 and, there fore , did not have sufficie nt time to obtain new counsel and allow that counsel time to prepa re f or trial. I n Villegas , the s upreme court held that the trial court a bused its discretion when it denied a pro se motion for continuance afte r the trial court allowed the party ’s attorney to withdraw two day s befor e trial “bec ause the evidenc e shows that [t he party ] was not neg lige nt or at fault in causing his attorney ’s withdrawa l.” 711 S.W .2d at 626. I n contra st, the trial court here could have found that Bog dany fa i l ed t o show that his lack of repr esenta tion was not due to own fault or neg lige nce. See id. The basis of his former attorney ’s motion to withdr aw wa s her inability to

comm unicate with Bog dany

. At the hear ing on her motion, she stated to the trial court t h at h er

5primary method of communicating with Bog dany had been by cell phone and that he would call her

back shortly aft er s h e l eft a messag e but that, afte r the hear ing on the motion for continuance in October 2009, he did not respond to her messag es, including her messag es that she neede d his input to answe r discovery that was due Dec ember 1, and that the trial had been rese t to J anuar y 5, 2010. She also stated to the trial court th at Bo gd an y did not provide her with his new addre ss afte r the parties s ep ara ted in J une 2009. Although Bog dany disputed that his former attorney tried to “g et ahold” of him dur ing this time period, we cannot conclude that the trial court abused its discr etion by deny ing his motion for continuance and proce eding with the trial. See Gende bien v. Gende bien , 2 668 S.W .2d 905, 908 (Tex. App.—Houston [14t h Dist.] 1984, no writ) (ac tion of trial court deny ing motion for continuance “will not be disturbed unless the rec ord shows a clea r abuse of discretion”)

. We overrule Bog dany ’s first issue.

I n h is s e cond issue, Bog dany challeng es the awa rd of attorney ’s fee s ag ainst him. Th e t ri al court awa

rded Hammett’s attorney a judgme nt ag ainst Bog dany in the amount of $8,850 for attorney ’s fee s and costs and the attorney repr esenting the trust a judgme nt in the amount of $2,200. Bog dany contends that “the awa rd of a ttorney ’s fe es we re not awa rded as an equitable division of the community proper

ty , but beca

use [t h e trial court] believed that Appellant’s ‘position in this divorce was unrea sonable and unwar rante d and there fore

. . . he should pay the cost for it.’” He also challeng es t he award of attorney ’s fees for the t rust’s attorney beca use t he trust was not a party to

At trial, Bog dany disputed that his former attorney left messag es on his cell phone, and it 2 was his position that he was not obliga ted to maintain contac t with her or to reg ularly chec k his post offic e b o x . He testified that he chec ked it ever y two to three wee ks and that he was residing in a rec rea tional vehicle a t the time. 6the proce eding

. He further contends that it was not “just and equitable” t o aw ar d att orney ’s fee s

ag ainst him beca

use he is “six ty -e i gh t y ears old, suffe rs from dy slex ia and numerous other health rela ted i ssues, and has a very limit ed earning potential having been out of t he workforc e for more than ten y ear s.”

I n a divorce proce eding , the trial court is char g ed with dividing the community estate in a “just and rig ht” manner , g iving due reg ard to the rig hts of eac h party

. See Tex. Fam. Code Ann. § 7.001 (West 2006). Trial courts are aff orded wide discretion in dividing the community estate, and

we must indulge ever

y rea sonable presumption in favor of the trial court’s proper exercise of its discretion. See Mandell , 310 S.W .3d at 538-39. Fur ther, in a non-jury trial, when no finding s of fac t

or conclusions of law are filed or reque sted, as is the case here , we must presume that the trial court made all the necessar

y fi ndings to support its judgme nt. See Allen v. All en , 717 S.W .2d 311, 313 (Tex. 1986). When the trial court’s implied finding s are supported by the evidenc e, we must uphold its judgme nt on any theory of law applicable to the case . See W orford v. Stamper , 801 S.W .2d 108, 109 (Tex. 1990).

As part of the “just and rig ht” division of the estate, the trial court has the equitable p o we r t o awa

rd either spouse attorney ’s fee s. See Mandell , 310 S.W .3d at 541; see, e.g. , Mu r f f , 615 S.W .2d at 699 (attorne y ’s fees among many fac tors courts may consider in making a jus t and rig ht division). Her e, the trial court found that Hammett “incur red $8,850.00 as attorney ’s fee s and costs with [her attorney ]; and the additional sum of $2,200.00 as attorney ’s fee s and costs with [t he attorney for t h e t ru s t ]

. ” Bog dany does not dispute that Hammett actua lly incurre d those fee s and costs prior to the parties’ divorce , and he does not otherwise challeng e the proper ty division that

7included the parties’ ag ree ments on the division of their household items, car s, and bank acc ounts,

and the trial court’s division of the cer tificates of deposit. He also does not challeng e the denial of his reimbursement c laim for the wor k that he per formed on the proper ty for the tr ust. The evidenc e showed that the parties lived rent fre e on the trust’s proper ty from 2004 to J une 2009, that Bog dany was unemploy ed during that time, and that Hammett did not own the assets of the trust. Hammett also testified that she contributed more than $2,200 and Bo gdany contributed “a littl e less than a thousand” a month for living expenses during the period t h at they

wer e living rent fre e. The trial court divided the cer tificates of deposit by awa rding eac h party their initial investment—Hammett $30,000 and Bog dany $49,000—plus their respe ctive perc entag es in the remaining balance

. Taking into acc ount the property division as a whole, the trial cour t could have found that it was “just and rig ht” to awa rd Hammett incurre d attorney ’s fee s and costs as part of the equitable division of the estate. See Allen , 717 S.W .2d at 313. On this rec ord then, we cannot conclude that the t rial court abused its discretion in its awa rd of attorney ’s fees aga inst Bog dany

. S ee Mu r ff , 615 S.W .2d at 698-99 (cour t has wide discretion in dividing the estate)

. We overr ule Bog dany ’s sec ond issue.

CONCLUSION

Having overr

uled B og dany ’s issues, we a ffirm the divorc e dec ree .

8__________________________________________ J an P. Patterson, J ustice Be fore J ustices Patterson, Pury ear and He nson Affir med Filed: Nove mber 19, 2010

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