Monte Joe Martin v. Vassana Martin--Appeal from 37th Judicial District Court of Bexar County

MEMORANDUM OPINION

No. 04-04-00828-CV

Monte J. MARTIN,

Appellant

v.

Vassana MARTIN,

Appellee

From the 37th Judicial District Court, Bexar County

Trial Court No. 2003-CI-10445

Honorable Pat Boone, Judge Presiding

Opinion by: Catherine Stone, Justice

Sitting: Catherine Stone, Justice

Sarah B. Duncan, Justice

Phylis J. Speedlin, Justice

Delivered and Filed: July 6, 2005

AFFIRMED.

Pro se appellant, Monte J. Martin, appeals the trial court s final divorce decree. Monte raises three issues on appeal, claiming: 1) his presence was required at the final hearing; 2) he was denied effective assistance of counsel in violation of the Sixth Amendment to the United States Constitution; and 3) the trial court did not have sufficient evidence to divide the marital estate in a just manner. We affirm the trial court s judgment in this memorandum opinion pursuant to Tex. R. App. P. 47.4.

Background

Vassana Martin filed a petition for divorce from Monte Martin, who was incarcerated in the Bexar County Adult Detention Center, on July 8, 2003. The matter was set for a final hearing on September 23, 2003. Prior to the hearing, Monte filed a motion for continuance so he could retain the services of an attorney. At the hearing, the trial court granted Monte s motion for continuance and ordered Vassana to sell Monte s truck so he could use the proceeds to retain counsel. Thereafter, Monte retained the services of an attorney.

On July 8, 2004, a hearing on the merits was held and the parties were divorced. The record reflects that Monte appeared through his attorney of record, Richard D. Woods. In the final divorce decree, the trial court equally divided the parties personal property, household furnishings, and personal items. Each party was held responsible for his or her credit card debt, debts associated with any property awarded to that party, and debts incurred by each party since the separation. In addition, Vassana was awarded a 1996 Nissan Altima, and Monte was awarded a judgment of $3800 against Vassana.

Appearance at the Final Hearing

In his first issue, Monte complains his presence was necessary at the final hearing. An inmate, however, does not have an automatic right to personally appear as a defendant in a civil action. Zuniga v. Zuniga, 13 S.W.3d 798, 801 (Tex. App. San Antonio 1999, no. pet.) disapproved in part on other grounds by In re Z.L.T., 124 S.W.3d 163, 166 (Tex. 2003). The record reflects that Monte s personal presence was unnecessary because he appeared at the final hearing and participated through his retained counsel. Tex. R. Civ. P. 7 (a party may appear and defend his rights in a civil action either in person or by an attorney ). Thus, we overrule Monte s first issue.Ineffective Assistance of Counsel

In his second issue, Monte contends he was denied effective assistance of counsel in violation of his rights under the Sixth Amendment to the United States Constitution. U.S. Const. amend. VI. Monte complains his retained counsel failed to keep him reasonably informed of the status of the case, respond to his requests for information, permit him to assist in preparing the case, and adequately investigate the case. However, no claim for ineffective assistance of counsel lies in a civil case where counsel is retained. See Cherqui v. Westheimer St. Festival Corp., 116 S.W.3d 337, 343 (Tex. App. Houston [14th Dist.] 2003, no pet.). Accordingly, we overrule this issue.

Division of the Assets

In his third issue, Monte contends the trial court did not have sufficient evidence to divide the marital estate justly. Trial courts are afforded wide discretion in dividing marital property upon divorce; therefore, we will not disturb the trial court s property division absent an abuse of discretion. Jacobs v. Jacobs, 687 S.W.2d 731, 733 (Tex. 1985). A trial court abuses its discretion when it acts without reference to any guiding rules or principles, i.e., when its actions are arbitrary or unreasonable. See Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985), cert. denied, 476 U.S. 1159 (1986).

In this case, we have no record of the final hearing because the parties waived the making of a record. Additionally, Monte did not request any findings of fact or conclusions of law. In a non-jury trial, when no findings of fact or conclusions of law have been filed or requested, we must presume that the trial court made all the necessary findings to support its judgment. Pharo v. Chambers County, 922 S.W.2d 945, 948 (Tex. 1996). Monte asserts the trial court should have awarded him an additional $15,000, but does not point to any portion of the record to support this contention. Monte supports his argument with attachments to his brief, which consist of various handwritten notes and photocopies. The documents attached to Monte s brief are outside the record, however, and without any evidence in the record on this issue, Monte has presented nothing for our review. See Tex. R. App. P. 33.1; 38.1(h). We overrule Monte s third issue. The trial court s judgment is affirmed.

Catherine Stone, Justice