Robert D. Hentnik v. Diane E. Hentnik--Appeal from 216th Judicial District Court of Gillespie County

MEMORANDUM OPINION
No. 04-03-00798-CV
Robert D. HENTNIK,
Appellant
v.
Diane E. HENTNIK,
Appellee
From the 216th Judicial District Court, Gillespie County, Texas
Trial Court No. 9716
Honorable Charles Sherrill, Judge Presiding

Opinion by: Karen Angelini, Justice

Sitting: Catherine Stone, Justice

Sarah B. Duncan, Justice

Karen Angelini, Justice

Delivered and Filed: July 7, 2004

AFFIRMED

This is an appeal of the final decree of divorce signed by the trial court. On July 12, 2002, Appellant Robert Hentnik filed a pro se petition for divorce. Almost a year later, on June 2, 2003, Diane Hentnik filed a counter-petition for divorce. At the same time, Diane requested a trial setting. The trial court set the case for trial for June 17, 2003. On June 17, 2003, Diane appeared at trial in person and represented by counsel. Robert appeared and represented himself. After hearing testimony from both Diane and Robert, the trial court entered a final decree of divorce. On August 28, 2003, Robert's motion for new trial was heard and denied. Robert appeals the trial court's judgment.

Rule 245 of the Texas Rules of Civil Procedure provides, "The Court may set contested cases on written request of any party, or on the court's own motion, with reasonable notice of not less than forty-five days to the parties of a first setting for trial[.]" (1) Robert contends that because the trial was set with less than forty-five days notice, he is entitled to a new trial. The forty-five day notice provision, however, though mandatory, is not absolute. Franyutti v. Franyutti, No. 04-02-00786-CV, 2003 WL 22656879, at *2 (Tex. App.--San Antonio 2003, no pet.) (memorandum op.). "A party may waive a complaint by failing to take action when the party receives some, but less than forty-five days', notice." Custom-Crete, Inc. v. K-Bar Servs., Inc., 82 S.W.3d 655, 659 (Tex. App.--San Antonio 2002, no pet.). In this case, Robert did not object to the trial court's failure to comply with rule 245. Instead, he appeared and participated.

Although Robert concedes that he did not object to going forward, he nevertheless contends that "he did the best he could by stating to the Court that he was not prepared for the trial." Robert points to his testimony where he stated "[he] had a short time to get an attorney" and he was "in the middle of Boy Scouts right now." These statements, however, are not sufficient to preserve a rule 245 objection. To complain on appeal, the objection at trial must be a specific complaint of lack of rule 245 notice. Padilla v. Comm'n for Lawyer Discipline, 87 S.W.3d 624, 626 (Tex. App.--San Antonio 2002, pet. denied). Thus, Robert waived the lack of rule 245 notice on appeal.

Robert also complains that he is entitled to a new trial because the parties failed to comply with the Rules of Practice in the 198th and 216th Judicial District Courts for Family Law Cases. He states that the rules require the parties to complete an income and expense statement, submit a written inventory of assets and liabilities, and attend a seminar for divorcing parents, none of which was done. Again, however, Robert waived the issue by failing to object at trial. See Tex. R. App. P. 33.1 (to present a complaint for appellate review, the record must show the complaint was made to the trial court by a timely request, objection, or motion). Thus, Robert waived this issue.

Accordingly we overrule all of Robert's issues on appeal and affirm the trial court's judgment.

Karen Angelini, Justice

1. June 17, 2003 was the first trial setting.