Emily Kleine Lehmberg v. Tim Gordon Lehmberg--Appeal from 198th Judicial District Court of Mason County

MEMORANDUM OPINION
No. 04-01-00513-CV
Emily Kleine LEHMBERG,
Appellant
v.
Tim Gordon LEHMBERG,
Appellee
From the 198th Judicial District Court, Mason County, Texas
Trial Court No. 004520
Honorable Emil Karl Prohl, Judge Presiding

Opinion by: Paul W. Green, Justice

Sitting: Catherine Stone, Justice

Paul W. Green, Justice

Sarah B. Duncan, Justice

Delivered and Filed: April 30, 2003

AFFIRMED IN PART AND APPEAL DISMISSED IN PART FOR LACK OF JURISDICTION

Appellant Emily Kleine Lehmberg appeals from the final decree of divorce granted to appellee Tim Gordon Lehmberg and from an order holding appellant in contempt for failing to comply with two prior court orders enforcing the property division in the divorce decree. Because the issues in this appeal involve the application of well-settled principles of law, we affirm the trial court's judgment in this memorandum opinion. See Tex. R. App. P. 47.4.

1. In her first issue, appellant argues the trial court erred in striking her request for jury trial. Appellant filed no response to appellee's motion to strike the request for jury trial nor did appellant appear at the hearing on the motion to strike. Failure to object in the trial court waives presentation of the alleged error on appeal. See Tex. R. App. P. 33.1(a); Osterberg v. Peca, 12 S.W.3d 31, 55 (Tex. 2000); Hughes v. Hughes, 407 S.W.2d 14, 15 (Tex. Civ. App.-Waco 1966, no writ).

2. In her second issue, appellant complains the trial court erred in denying her motion to substitute counsel on the day of trial. (1) The record reveals the trial date was set sixteen months after the petition for divorce was filed and seven months after appellant was served. Her counsel's only stated reason for substitution was that appellant had hired a new attorney and he was out of state. Counsel for appellee advised the court that appellant had previously told him she would fight the divorce and would do anything to delay the proceedings. Under these circumstances, the trial court did not abuse its discretion by denying the motion to substitute counsel. See Cotrone v. Bryan Prod. Cred. Ass'n, 502 S.W.2d 954, 955 (Tex. Civ. App.-Waco 1973, writ ref'd n.r.e.).

3. In her third issue, appellant says the trial court erred by not granting her motion to disqualify appellee's trial counsel. Appellant's complaint about the conflict of counsel is waived because the motion was untimely. Appellant apparently knew about the alleged conflict when she was contacted by appellee's counsel shortly after the petition was filed. She surely knew when she was served in the suit, but she did not object until the day of trial. The trial court did not abuse its discretion by denying the motion to disqualify counsel. See In re George, 28 S.W.3d 511, 513 (Tex. 2000).

4. In her next issue, appellant complains the trial court erred by denying her motion for continuance presented the day of trial. No written motion was filed; therefore, we presume the trial court did not abuse its discretion in denying a continuance. See Tex. R. Civ. P. 251, 252; In re Butler, 45 S.W.2d 268, 272 (Tex. App.-Houston [1st Dist.] 2001, orig. proceeding); Garcia v. TEIA, 622 S.W.2d 626, 630 (Tex. App.-Amarillo 1981, writ ref'd n.r.e.). In addition, appellant presented no grounds for her motion other than her desire to change counsel at the last minute. We will not disturb the trial court's ruling where the decision does not show a clear abuse of discretion. Villegas v. Carter, 711 S.W.2d 624, 626 (Tex. 1986).

5. Appellant's next listed issue complains of the division of the marital property. However, appellant did not discuss the issue in her brief or her reply brief. By raising the issue and failing to present any argument or authority, appellant waived review of her complaint. See San Antonio Credit Union v. O'Connor, 04-02-00714-CV, 2002 WL 31662054, at *9 n.3 (Tex. App.-San Antonio November 27, 2002, no pet. h.); Chapman Children's Trust v. Porter & Hedges, L.L.P., 32 S.W.3d 429, 434 (Tex. App.-Houston [14th Dist.] 2000, pet. denied).

6. In her final issue, appellant challenges the trial court's post-judgment order finding appellant in contempt for failing to turn over certain property in compliance with the trial court's prior orders enforcing the terms of the final divorce decree. (2) A contempt order is not an appealable order. See Metzger v. Sebek, 892 S.W.2d 20, 54 (Tex. App.-Houston [1st Dist.] 1994, writ denied). Accordingly, we have no jurisdiction to review the trial court's contempt order. See id. at 55-56.

In conclusion, we overrule appellant's first five issues and affirm the judgment of the trial court as it relates to the decree of divorce. The appeal in issue six related to the trial court's decision to hold appellant in contempt is dismissed for lack of jurisdiction. Costs of appeal are adjudged against appellant, Emily Kleine Lehmberg.

Paul W. Green, Justice

1. Although there is some reference to a written motion in the reporter's record, no written motion is included in the clerk's record or the exhibits to the reporter's record.

2. A copy of the order is attached to the appellant's reply to appellee's brief, but it is not included in the clerk's record and no supplemental clerk's record was requested or filed. Appellant filed the reporter's record of the hearing, which reflects the order of the trial court.