David C. Northcutt v. Carmaleete Northcutt--Appeal from County Court at Law No 1 of Brazos County

IN THE

TENTH COURT OF APPEALS

No. 10-99-082-CV

IN THE MATTER

OF THE MARRIAGE OFCARMALEETE NORTHCUTT

AND

DAVID C. NORTHCUTT

From the County Court at Law No. 1

Brazos County, Texas

Trial Court # 36,345A-CCL1

MEMORANDUM OPINION

Carmaleete and David Northcutt were granted a divorce after a trial to the court. On the day of the trial, the court heard a motion for continuance filed by David only seven days earlier. The trial court denied the motion and began the trial. On appeal, David raises only one issue; that the trial court erred in denying his motion for continuance. We affirm.

It is well established that the denial of a motion for continuance is within the sound discretion of the trial court and will not be disturbed on appeal absent a clear abuse of discretion. State v. Wood Oil Dist., Inc., 751 S.W.2d 863, 865 (Tex. 1988); Beutel v. Dallas County Flood Control Dist., No. 1, 916 S.W.2d 685, 693 (Tex. App. Waco 1996, writ denied).

The reason stated in the written motion for continuance was that David s counsel had other criminal matters scheduled for the same date. At the time of the hearing, only one criminal trial conflicted with the divorce. David s counsel argued that he would be doing injustice to a man looking at prison time if his motion was denied. It was revealed however, that the divorce proceeding had been set at least two months prior to the trial and that the criminal trial had been set at least one month before trial. Also, David s counsel was not the lead counsel in the conflicting criminal trial and would not be needed during the first day of that trial. The record reflects that Carmaleete s counsel surmised the divorce would only take one day because of discovery sanctions requested and later granted. On appeal, David contends that because the trial court did not follow its own local rules and give the criminal trial preference, his counsel was unprepared for the divorce proceeding; thus, the trial court abused its discretion in denying his motion for continuance. This theory for continuance was not propounded to the trial court in the written motion or at the hearing. //

Based on the record before us, we cannot say that the trial court abused its discretion by denying David s motion for continuance. His issue is overruled, and the judgment is affirmed.

PER CURIAM

Before Chief Justice Davis,

Justice Vance, and

Justice Gray

Affirmed

Opinion delivered and filed December 13, 2000

Do not publish