Opinion
No. 01-04-01225-CV
Opinion issued July 19, 2007.
On Appeal from the 387th District Court Fort Bend County, Texas, Trial Court Cause No. 03-CV-132545.
Panel consists of Justices NUCHIA, HANKS and BLAND.
MEMORANDUM OPINION
Mark Parmer appeals a post-answer default judgment in a divorce proceeding brought by Helen Hardcastle Parmer. Although Mark had notice of the divorce hearing, he did not attend. In his absence, the trial court dissolved the marriage and appointed Helen sole managing conservator of their child. On appeal, Mark contends the trial court erred in entering the default judgment and in refusing to (1) appoint Mark possessory conservator of the child; (2) order a DNA test to determine the child's biological father; (3) order the child's last name changed from Hardcastle to Parmer; and (4) grant Mark's request for a jury trial. We affirm.
Background
Mark and Helen married in March 2002. In July 2002, Mark pled guilty and was convicted of injury to a child with a deadly weapon, causing the death of Helen's daughter from a previous marriage. The trial court sentenced Mark to thirty years in prison, and he remains incarcerated at the time of this appeal.2
Mark and Helen had a child, born in April 2003. In October 2003, Helen, acting pro se, petitioned for divorce. Mark, also pro se, responded in his answer that Helen's original petition incorrectly stated that she has no children from the marriage. Helen then amended her petition and disclosed that she has a child with Mark. Helen requested that the trial court award sole custody of the child to her and deny Mark any visitation.
In January 2004, Mark moved the trial court to order DNA testing to establish paternity, but the record contains no ruling by the trial court on this motion. On August 8, 2004, Mark received notice that the trial court had set the hearing on the divorce petition for October 8, 2004. The notice also advised Mark to request a bench warrant in writing if he wished to attend. On October 7, 2004, the day before the scheduled proceeding, the trial court received various motions from Mark, in which he requested that the court (1) grant a jury trial, (2) name him or his parents as possessory conservators, and (3) change the child's last name to his name. Mark also renewed his request for DNA testing. He did not, however, request a bench warrant or make any other attempt to arrange for his appearance at court, either in person or by alternative means.
The trial court proceeded with the hearing in Mark's absence and entered a post-answer default judgment in favor of Helen. With respect to custody and visitation, the following colloquy took place between Helen and the trial court:
THE COURT: But I need a divorce decree, something for me to sign that addresses your son, addresses custody of your son. I assume at this point you're not going to enter any child support because the guy can't pay child support. I assume that since he's in prison he's not going to have any specific visitation. It will just be whatever you approve whenever he gets out, something on that basis.
Helen: Can I approve zero? Is that an option?
THE COURT: You can approve whatever you want to but I need something in the paperwork that says that you will try to work with him and agree to visitation. And if you don't, then you don't and then he can come complain about it. Am I going to approve a — well, what is he in prison for?
Helen: He killed my daughter.
THE COURT: You just answered your own question. Then I want something in there saying that you have sole custody of this child and that he is not to have visitation.
The final divorce decree orders that "there will be no visitation rights of [the child] by the Respondent Mark Anthony Parmer unless permitted by Helen Christine Hardcastle." Mark did not seek any postjudgment relief from the trial court, but did notice this appeal.
Analysis
Post-Answer Default Judgment
Mark asserts that the trial court erred in entering the default judgment against him because he answered Helen's petition. "Unlike other civil cases in which a defaulting defendant is presumed to admit the petition's allegations regarding liability and liquidated damages, the allegations in a divorce petition are not admitted by a defaulting defendant." Miles v. Peacock, No. 01-06-00313-CV, 2007 WL 1166162 (Tex.App.-Houston [1st Dist.] Apr. 19, 2007, no pet. h.); see TEX. FAM. CODE ANN. § 6.701(Vernon 2006); Wilson v. Wilson, 132 S.W.3d 533, 538 (Tex.App.-Houston [1st Dist.] 2004, pet. denied); see also Sandone v. Miller-Sandone, 116 S.W.3d 204, 207 (Tex.App.-El Paso 2003, no pet.) (noting that divorce petition may not be taken as confessed even if respondent does not file answer). An answer alone, however, does not preclude the entry of a default judgment. See Sharif v. Par Tech, Inc., 135 S.W.3d 869, 872 (Tex.App.-Houston [1st Dist.] 2004, no pet.) (post-answer default judgment occurs where party files timely answer but fails to appear at trial).
Here, the trial court entered a default judgment not because Mark failed to answer, but because he did not appear at the divorce hearing. At the hearing, Helen presented some evidence to support the allegations in her petition. Mark did not move for a new trial or other post-judgment relief and thus failed to preserve any basis to review the post-answer default judgment. See TEX. R. APP. P. 33.1(a); Dunn v. Dunn, 177 S.W.3d 393, 397-98 (Tex. App — Houston [1st Dist.] 2005, pet. denied). As a pro se party, Mark is held to the same standard as a licensed attorney and thus is required to comply with the rules of procedure. See Wheeler v. Green, 157 S.W.3d 439, 444 (Tex. 2005); Sedillo v. Campbell, 5 S.W.3d 824, 829 (Tex.App.-Houston [14th Dist.] 1999, no pet.). Accordingly, we may not consider Mark's complaints about child custody, conservatorship, and visitation issues addressed in the final divorce decree.
DNA Test and Name Change
Mark also contends that the trial court wrongly failed to grant his motions for DNA testing and to change the name of the child to include his last name. Mark asserts that the Family Code entitles him to the relief he requested in both of these motions. The court, however, never ruled on these motions, and Mark never requested any ruling.
When a party does not obtain a ruling on a motion, request that the court document its refusal to rule, or otherwise object to the court's refusal, that party may not later complain about the lack of any such ruling. TEX. R. APP. P. 33.1(a); see Retzlaff v. Texas Dep't of Criminal Justice, 135 S.W.3d 731, 745 (Tex.App.-Houston [1st Dist.] 2003, no pet.); see also Wilson v. Korthauer, 21 S.W.3d 573, 578 (Tex.App.-Houston [14th Dist.] 2000, pet. denied) (motion to strike petition); Mitchell v. Bank of America, N.A., 156 S.W.3d 622, 626 (Tex.App.-Dallas 2004, pet. denied) (motion for continuance); Martin v. Commercial Metals Co., 138 S.W.3d 619, 623 (Tex.App.-Dallas 2004, no pet.) (motion for sanction); Jones v. Smith, 157 S.W.3d 517, 523-24 (Tex.App.-Texarkana 2005, pet. denied) (motions for summary judgment and sanction). Mark's failure to request rulings on his outstanding motions means that we may not consider these issues either.
Request for Jury Trial
In his final issue, Mark asserts that the trial court erred in refusing to grant his belated jury demand, in violation of the Fourteenth Amendment of the United States Constitution. A civil litigant does not have an automatic right to a jury trial. Rather, the party must demand it and pay any applicable fee within the prescribed time. TEX. R. CIV. P. 216; In re J.N.F., 116 S.W.3d 426, 431 (Tex.App.-Houston [14th Dist.] 2003, no pet.). Mark's request for a jury, made the day before trial, was untimely. See TEX. R. CIV. P. 216 (party must make written request for jury trial at least thirty days before trial).
Moreover, Mark has also waived any error as to this issue. See TEX. R. APP. P. 33.1. Mark did not present the issue to the trial court in a motion for new trial, and has not identified in his brief any basis on which we could conclude that the trial court committed any fundamental error or abused its discretion in failing to grant the untimely demand.
Conclusion
The judgment of the trial court is affirmed.