Frankie Wayne Nealy v. Robin Michelle Nealy, 13-14-00689-CV

Background

Frankie Nealy (Appellant), an incarcerated pro se defendant, was sued for divorce by Robin Nealy (Appellee). Two contested nonjury hearings occurred: July 7, 2014 (court granted divorce and bifurcated property) and September 22, 2014 (court withdrew the July 7 order and reheard the entire divorce including property).
Appellant appeared by telephone; Appellee appeared in person with counsel. Appellant claims limited access to discovery and to the court because of incarceration and pro se status.
Appellant filed discovery requests, two motions for continuance, two motions for bench warrant, a jury demand (with an affidavit of inability to pay), requests for findings of fact & conclusions of law, and motions for new trial; several of these motions were denied or not ruled on.
On September 22, Appellee admitted three late-produced letters allegedly from Appellant; Appellant objected on timeliness and authentication grounds. The court admitted the three letters and granted the divorce, awarding Appellant $500 for a vehicle.
Appellant raises procedural and evidentiary complaints on appeal: alleged ex parte communication between opposing counsel and the judge (leading to vacatur of the bifurcated order), denial of continuances, deprivation of jury trial, insufficiency of evidence for insupportability, erroneous admission of the late letters, inadequate findings of fact, and the court’s failure to rule on a bench-warrant request.

Issues

Issue	Appellant's Argument	Appellee / Trial Court Position	Held (trial-court action reflected in record)
Ex parte communication	Counsel for Appellee communicated off-the-record with judge causing judge to conclude the July 7 order was "improvidently granted" without Appellant present	No on-the-record explanation in transcript; court rescinded prior order	Trial court set aside July 7 decree and reheard entire divorce (rescission occurred without prior notice to Appellant)
Denial of continuances	Nealy argued he needed continuances because (1) he had no notice the court would rescind the bifurcated order and (2) he received voluminous discovery/exhibits only ~45 minutes before the hearing	Court denied continuances, reasoning case had been on file long time and discovery was closed	Continuance requests were denied at the September 22 hearing
Denial of jury trial	Nealy timely demanded a jury and filed inability-to-pay affidavit; when the court rescinded the bifurcation he renewed the demand and asked for a ruling	Opposing counsel did not formally oppose on the record; the court proceeded nonjury	Record shows the court proceeded nonjury; Appellant contends he preserved objection and the jury demand went unresolved
Admission of late exhibits / authentication	Appellant objected to three letters admitted as Appellee’s exhibits on timeliness and lack of authentication (possible fabrication)	Court admitted the three letter exhibits as originals bearing Appellant’s signature; Appellant’s objections were overruled	Three letters were admitted and used by the court in awarding relief (Appellant objected throughout)

Key Cases Cited

Pharo v. Chambers County, 893 S.W.2d 264 (Tex. App. 1995) (trial fairness and impartial judge principles)
U.S. Gov’t v. Marks, 949 S.W.2d 320 (Tex. 1997) (ex parte communications strongly disfavored)
In re Thoma, 873 S.W.2d 477 (Tex. Rev. Trib. 1994) (definition and prohibition of ex parte communications)
Halsell v. Dehoyos, 810 S.W.2d 371 (Tex. 1991) (timing and opposition to jury demand)
Huddle v. Huddle, 696 S.W.2d 895 (Tex. 1985) (jury trial demand requirements)
In re Marriage of Richards, 991 S.W.2d 32 (Tex. App. 1999) (elements for no-fault/insupportability divorce)