Rosas, Domingo v. Rosas, Michele--Appeal from County Court of Waller County

Affirmedand Memorandum Opinion filed September 9, 2003.

In The

Fourteenth Court of Appeals

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NO. 14-02-00255-CV

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DOMINGO C. ROSAS, Appellant

V.

MICHELE ROSAS, Appellee

On Appeal from the County Court at Law

Waller  County, Texas

Trial Court Cause No. 00-11-15,585

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

In this divorce proceeding, appellant Domingo Rosas appeals from an unfavorable summary judgment that he claims was based on deemed admissions that should have been set aside. Because Domingo failed to bring forward a record of the hearing on his motion to withdraw and amend the deemed admissions, we affirm.

Appellee Michele Rosas filed for a petition for divorce from Domingo on November 2, 2000. On May 5, after Domingo apparently failed to appear for his deposition, Michele=s counsel sent him requests for admissions. Although Domingo received the requests, he never answered them. Later, Michele filed a motion for summary judgment based on the unanswered requests for admissions. On September 13, 2001, the trial court signed an order granting the motion. On October 8, 2001, Domingo filed a response to Michele=s motion for summary judgment and a motion to amend or withdraw his deemed admissions. The following day, the trial court denied this motion and entered a Final Decree of Divorce. The decree recited that Michele and Domingo appeared in person and through their attorneys, and that a record of testimony was made by the trial court=s official court reporter.

On appeal, Domingo claims the trial court abused its discretion in denying his motion to amend or withdraw the deemed admissions that were the basis for the summary judgment granting Michele=s petition for divorce. Our record reflects that the trial court denied Domingo=s motion to withdraw the deemed admissions on October 9, 2001, and suggests that the trial court heard evidence at that time, and that a court reporter made a record of the testimony. Our appellate record, however, contains no reporter=s record from the hearing on Domingo=s motion to withdraw or amend the deemed admissions. Therefore, we must presume that the evidence at the hearing supported the trial court=s denial of that motion. See Cowling v. Colligan, 312 S.W.2d 943, 946 (Tex. 1958); Shelton v. Standard Fire Ins. Co., 816 S.W.2d 552, 553 (Tex. App.CFort Worth 1991, no writ). Consequently, without a reporter=s record of the testimony at that hearing, Domingo cannot show that the trial court abused its discretion. See Nat=l. Union Fire Ins. Co. of Pittsburgh, Pa. v. Wyar, 821 S.W.2d 291, 296 (Tex. App.CHouston [1st Dist.] 1991, no writ) (holding appellant could not show abuse of discretion in denying motion to withdraw or amend deemed admissions because there was no record of the hearing on that motion).

 Thus, on this record, we cannot sustain Domingo=s challenge to the trial court=s refusal to allow withdrawal or amendment of the deemed admissions upon which the trial court based its summary judgment granting Michele=s petition for no-fault divorce. We affirm the trial court=s judgment.

/s/ Wanda McKee Fowler

Justice

Judgment rendered and Memorandum Opinion filed September 9, 2003.

Panel consists of Justices Anderson, Fowler, and Frost.