Clifford Bart Dunbar v. Naima El Khaoua
03-14-00345-CV
| Tex. App. | Jan 9, 2015Background
- Parties: Appellant Clifford Dunbar (pro se, incarcerated) v. Appellee Naima El Khaoua (represented by counsel); final decree of divorce entered Feb. 20, 2014 by 200th Judicial District Court, Travis County.
- Procedural posture: Divorce heard by associate judge; Dunbar received notice but did not appear in person or request an effective alternative (bench warrant, phone, affidavit, deposition); he later filed post-judgment motions, a request for de novo hearing, and a motion for new trial that were untimely or not pursued to hearing.
- Appellee amended her petition shortly before trial to add Dunbar’s felony conviction as a ground for divorce and as a possible basis for unequal property division; no contemporaneous objection at trial and no showing of surprise or prejudice.
- Trial evidence: Appellee testified Dunbar left town (2008/2009), took a jointly owned vehicle and depleted about $5,000 from joint savings, and has been incarcerated since 2009; Appellee sought an unequal division and was awarded the home and net estate (effectively 100% of community estate to Appellee, with debts assigned accordingly).
- Trial court findings: Divorce could be granted on insupportability; felony conviction was listed as a ground but the court stated the conviction did not factor into the property division; court found wasteful depletion of community assets by Dunbar and made an unequal, "just and right" division.
Issues
| Issue | Dunbar's Argument | El Khaoua's Argument | Held |
|---|---|---|---|
| 1. Denial of opportunity to participate (incarcerated litigant) | Denied due process because incarceration prevented appearance and participation | Dunbar was properly served, made no proper request for bench warrant or alternative means, and waived participation; trial court did not abuse discretion | Trial court did not abuse discretion; Dunbar waived participation (no bench warrant/request; de novo request untimely; new-trial showing inadequate) |
| 2. Allowing late amendment adding felony conviction | Amendment was untimely, should have required notice and restarted waiting periods | Amendment was considered by court; no showing of surprise or prejudice; rules allow amendment and court cured any formal defect by considering it | Amendment was permissible (no abuse of discretion); Appellant failed to show surprise or prejudice |
| 3. Use of felony conviction (appeal pending) as ground for divorce | Conviction not final while appealing and thus cannot be used under evidentiary rules | Family Code permits divorce on conviction/imprisonment/pardon status; conviction was not used to prove underlying facts and elements were established by uncontroverted testimony | Inclusion of felony was proper and/or moot because divorce could be granted on insupportability; conviction did not affect property division |
| 4. Unequal property division (100% to appellee) | Awarding all community property to one party is per se inequitable; insufficient evidence and abuse of discretion | Trial court had evidence of wasteful depletion of assets, ongoing incarceration, mortgage/debt burdens on appellee; division was just and right under facts | No abuse of discretion: evidence (legal and factual) supported findings; court permissibly considered waste and other relevant factors |
Key Cases Cited
- Mansfield State Bank v. Cohn, 573 S.W.2d 181 (Tex. 1978) (pro se litigants held to same procedural standards as represented parties)
- Larson v. Giesenschlag, 368 S.W.3d 792 (Tex. App.—Austin 2012) (standard for inmate's request to participate; need for request and alternatives)
- In re Z.L.T., 124 S.W.3d 163 (Tex. 2003) (factors and burden for bench-warrant/transport decisions for incarcerated litigants)
- Craddock v. Sunshine Bus Lines, Inc., 133 S.W.2d 124 (Tex. 1939) (requirements to obtain relief from default judgment)
- Goswami v. Metropolitan S. & L. Ass'n, 751 S.W.2d 487 (Tex. 1988) (presumption of court's leave to amend where amended petition in record and no showing of surprise)
- Chapin & Chapin, Inc. v. Texas Sand & Gravel Co., 844 S.W.2d 664 (Tex. 1992) (amendment prejudicial on its face if it asserts new cause of action)
- Murff v. Murff, 615 S.W.2d 696 (Tex. 1981) (broad discretion in dividing marital estate; factors to consider)
- Zeifman v. Michels, 212 S.W.3d 582 (Tex. App.—Austin 2006) (abuse-of-discretion review in family-law sufficiency and division cases)
- In re Marriage of Brown, 187 S.W.3d 143 (Tex. App.—Waco 2006) (district court must have adequate information about assets/values; 100% award to one spouse may be upheld only with sufficient record)