Malekzadeh, Mohammed v. Malekzadeh, Rebecca--Appeal from 312th District Court of Harris County

Reversed and Remanded and Opinion filed June 6, 2002

Reversed and Remanded and Opinion filed June 6, 2002.

In The

Fourteenth Court of Appeals

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NO. 14-01-00216-CV

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MOHAMMED MALEKZADEH, Appellant

V.

REBECCA MALEKZADEH, Appellee

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On Appeal from the 312th District Court

Harris County, Texas

Trial Court Cause No. 00-29196

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O P I N I O N

In this divorce case, Mohammed Malekzadeh appeals pro se a post-answer default judgment in favor of Rebecca Malekzadeh on the grounds that: he was not given 45 days notice of the trial setting; the trial court erred by ignoring his request for a bench warrant to appear for trial; Rebecca and her attorney engaged in fraud and misrepresentation at trial and knowingly used perjured testimony to affect the terms of the divorce decree; and the trial court erred by changing the surname of his minor children. We reverse and remand.

Because Mohammed s second issue is dispositive of the appeal, we will proceed to address it. That issue contends that the trial court denied Mohammed due process by ignoring his requests for a bench warrant to attend the trial.

In Texas, a prison inmate has a constitutional right of access to the courts, but only a qualified right to appear personally at a civil proceeding. Dodd v. Dodd, 17 S.W.3d 714, 717 (Tex. App. Houston [1st Dist.] 2000, no pet.). A trial court s decision regarding how to allow an inmate access to the courts is reviewed for abuse of discretion. Aguilar v. Alvarado, 39 S.W.3d 244, 248 (Tex. App. Waco 1999, no pet.). If a trial court denies an inmate s request to personally appear at trial,[1] it should allow the inmate to appear by affidavit, deposition, telephone, or other effective means.[2] Id. Thus, where an inmate requests a personal appearance, the trial court is required to make a determination as to the necessity of a personal appearance versus other means of participating.[3] A trial court abuses its discretion when it fails to make such a determination or otherwise effectively bars an inmate from presenting his case. Id.[4]

In this case, throughout the period in which Rebecca filed for divorce and the default judgment was entered, Mohammed was an inmate in the Texas Department of Corrections in Amarillo.[5] Mohammed s pro se answer contained a motion for issuance of a bench warrant. In his written objection to Rebecca s request for an expedited trial setting, Mohammed again asked to be present at trial. After he received notice of the trial setting, he reiterated his request for a bench warrant in a letter to the District Clerk and asked to be advised whether he would be allowed to appear.

However, according to the record, the only consideration of Mohammed s request for a bench warrant was the following exchange at the beginning of trial:

[Rebecca s attorney]: I would like the Court to also take notice for the record that [Mohammed] . . . did request a Bench warrant, but never proceeded with a hearing on that motion . . . that was ordered by this court authorizing that Bench warrant.

* * *

THE COURT: Yeah, I do have a motion that was never heard by this court. It was never set for hearing by this court. No one ever appeared on the respondent s behalf to argue this motion. And there has never been any order presented, or anything else pursuant to that motion to have [Mohammed] Bench warranted down here. So, it appears that he has not followed up on his request. So, you may go forward.

The divorce decree thus recites that Mohammed made a general appearance and was duly notified of trial, but failed to appear. It also appoints Rebecca and Mohammed sole managing conservator and possessory conservator of their children, respectively, changes the children s surname to Rebecca s maiden name, and makes no provision for Mohammed to have any definite visitation with his children, but only that he will have such possession as the parties mutually agree (and under supervision by a third party because of his incarceration for molestation of a minor).

Although Mohammed did not initiate the divorce suit and was not represented by counsel, its consequences to him were considerable in that it divided the couple s marital property, established their rights with regard to their children, and determined that his children would no longer bear his name. Regardless of the extent to which Mohammed s participation in the trial of this case might have affected the outcome,[6] he had a due process right to participate in some meaningful manner and made three written requests to do so. However, by making no inquiries or determination of how Mohammed would participate, conducting the trial without his participation, and then adjudicating his fundamental rights, the trial court denied Mohammed this due process right and abused its discretion.

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Ordinarily, to obtain a new trial following a post-answer default, the defaulting party must file a motion for new trial showing that: (1) the failure to appear was not intentional or due to conscious indifference; (2) the moving party has a meritorious defense to the underlying claims; and (3) granting the motion will cause no delay or injury to the opposing party. Lopez v. Lopez, 757 S.W.2d 721, 722 (Tex.1988). Similarly, a judgment generally may not be reversed on appeal unless the error complained of probably: (1) caused the rendition of an improper judgment; or (2) prevented the appellant from properly presenting the case to the court of appeals. Tex. R. App. P. 44.1(a).[7] However, where a party has received no notice of a trial setting, the requirement to show a meritorious defense in order to obtain a new trial violates due process. Lopez, 757 S.W.2d at 723 (citing Peralta v. Heights Med. Ctr., Inc., 485 U.S. 80 (1988)). This is true even if imposing the requirement was harmless, i.e., the moving party could not establish a meritorious defense:

Where a person has been deprived of property in a manner contrary to the most basic tenets of due process, it is no answer to say that in his particular case due process of law would have led to the same result because he had no adequate defense upon the merits. . . . [O]nly wiping the slate clean . . . would have restored the petitioner to the position he would have occupied had due process of law been accorded to him in the first place.

Peralta, 485 U.S. at 900.

In this case, Mohammed was not deprived of notice but, rather, an opportunity to be heard. However, we do not believe that any less due process protection accompanies the right to an opportunity to be heard than the right to notice, the ultimate purpose of which is to facilitate the right to be heard. See id. at 899 (noting that a fundamental requirement of due process is notice reasonably calculated to apprise interested parties of the pendency of the proceeding and afford them an opportunity to present their objections).

Similarly, Mohammed did not file a motion for new trial, but simply appealed the default judgment. However, it is clear that the requirements for a new trial, besides a meritorious defense, were met, and that preventing him from participating in the trial also satisfied the harm standard of preventing him from properly presenting his case on appeal.[8] Morever, under the rationale of Peralta, if a meritorious defense requirement cannot be imposed where due process is denied by lack of notice, we do not believe a requirement to file a motion for new trial[9] or to establish harm, if applicable, would fare any better where due process is denied by allowing no opportunity to participate in a trial. Accordingly, we sustain Mohammed s second issue,[10] reverse the judgment of the trial court, and remand the case to the trial court for further proceedings.

/s/ Richard H. Edelman

Justice

Judgment rendered and Opinion filed June 6, 2002.

Panel consists of Justices Anderson, Hudson, and Edelman.

Do Not Publish Tex. R. App. P. 47.3(b).

[1] In determining whether a personal appearance is warranted, the trial court must balance the government s interest in protecting the integrity of the correctional system against the prisoner s right of access to the courts. Dodd, 17 S.W.3d at 717. In doing so, two key factors are whether an inmate is represented by counsel or is pro se, and whether the inmate is a civil defendant rather than a plaintiff. Id. at 717. Additional factors include: (1) the cost and inconvenience of transporting the prisoner to court; (2) the security risk and potential danger of allowing the prisoner to attend open court; (3) whether the prisoner s claims are substantial; (4) whether a determination of the matter can reasonably be delayed until the prisoner is released from incarceration; (5) whether the prisoner can and will offer admissible, noncumulative testimony which could not be offered effectively by deposition, telephone, or otherwise; (6) whether the prisoner s presence is important in judging his demeanor and credibility compared with that of other witnesses; (7) whether the trial is to the court or to a jury; and (8) the prisoner s probability of success on the merits. Byrd v. Attorney Gen. of the State of Texas, 877 S.W.2d 566, 569 (Tex. App. Beaumont 1994, no pet.) (per curiam).

[2] The right of a prisoner to have access to the court entails not so much his personal presence, as the opportunity to present evidence or contradict the evidence of the opposing party. Dodd, 17 S.W.3d at 717.

[3] See Byrd, 877 S.W.2d at 569.

[4] See Jones v. Jones, 64 S.W.3d 206, 209-12 (Tex. App. El Paso 2001, no pet.) (reversing post-answer default divorce decree) (McClure, J.); Taylor v. Taylor, 63 S.W.3d 93, 96-98 (Tex. App. Waco 2001, no pet.) (same) (Davis, C.J.); In re Marriage of Daugherty, 42 S.W.3d 331, 335-36 (Tex.App. Texarkana 2001, no pet.) (same) (Cornelius, C.J.); Dodd, 17 S.W.3d at 716-18 (reversing property division portion of post-answer declaration that marriage was void); Zuniga v. Zuniga, 13 S.W.3d 798, 800-04 (Tex. App. San Antonio 1999, no pet.) (reversing post-answer default divorce decree) (Hardberger, C.J.); Byrd, 877 S.W.2d at 569; Pruske v. Dempsey, 821 S.W.2d 687, 688-89 (Tex. App. San Antonio 1991, no writ) (reversing post-answer default judgment in damage suit); Nichols v. Martin, 776 S.W.2d 621, 622-23 (Tex. App. Tyler 1989) (orig. proceeding) (per curiam) (granting mandamus to rescind order denying relator s requests to either appoint counsel to represent him, allow him to represent himself, or allow him to be represented by another inmate); see generally 58 Tex. Jur. 3d Penal and Correctional Institutions 91 (1996).

[5] The record does not reflect the length of Mohammed s confinement, except that Mohammed alleges that he is serving a 20-year sentence and Rebecca testified during the divorce trial that Mohammed is eligible for parole in 2003.

[6] We note that although Rebecca testified at trial that the couple s two children used her maiden name on all of their school, church, and doctor records, Mohammed attached to his brief copies of the children s school report cards reflecting their use of his surname at school. In addition, to the extent Rebecca was in possession of the couple s belongings at the time Mohammed was incarcerated, the property division to each party of the belongings in their possession effectively awarded all of that property to Rebecca.

[7] However, several similar cases have been reversed without addressing harm. See, e.g., Daugherty, 42 S.W.3d at 336; Dodd, 17 S.W.3d at 718; Byrd, 877 S.W.2d at 569.

[8] See Taylor v. Taylor, 63 S.W.3d 93, 98 (Tex. App. Waco 2001, no pet.).

[9] See Wilson v. Dunn, 800 S.W.2d 833, 837 (Tex. 1990) (holding that a motion for new trial is not required to preserve complaint of defective service with regard to default judgment).

[10] Because we sustain the second issue, we need not address the challenges presented in the remaining issues.