Wenzal M. Hardwick v. Cynthia K. Hardwick
02-15-00325-CV
| Tex. App. | Sep 29, 2016Background
- Wenzal M. Hardwick (Husband) and Cynthia K. Hardwick (Wife) divorced after a bench trial; final decree appealed by Husband.
- Both parties' attorneys withdrew earlier in the case; they later agreed on a bench-trial date of July 1, 2015.
- On June 29, 2015 Wife’s prior counsel filed a notice of appearance; counsel appeared for Wife at trial on July 1, 2015.
- Husband appeared pro se and filed an unverified written motion for continuance at 8:12 a.m. on the morning of trial, claiming he needed more time to retain counsel due to the surprise reappearance of Wife’s attorney.
- The trial court denied the continuance; after a bench trial the court entered a final divorce decree, and Husband appealed the denial of the continuance.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the trial court abused its discretion by denying Husband’s motion for continuance filed the morning of trial | Hardwick argued he was surprised by Wife’s prior counsel’s appearance and needed time to retain counsel | Trial court (and Wife) argued the motion was not verified or supported by affidavit and thus insufficient under Tex. R. Civ. P. 251 | Court affirmed: denial was not an abuse of discretion because the motion was not verified or supported by affidavit and did not qualify as an unsworn declaration under §132.001 |
Key Cases Cited
- In re Z.C., 280 S.W.3d 470 (Tex. App. — Fort Worth 2009) (standard of review for continuance rulings: abuse of discretion)
- BMC Software Belg., N.V. v. Marchand, 83 S.W.3d 789 (Tex. 2002) (denial of continuance reversed only for arbitrary or unreasonable action)
- Serrano v. Ryan’s Crossing Apartments, 241 S.W.3d 560 (Tex. App. — El Paso 2007) (motions for continuance must be verified or supported by affidavit)
- Shaw v. Lemon, 427 S.W.3d 536 (Tex. App. — Dallas 2014) (presumption of no abuse when continuance is unverified)
- Tex. Dep’t of Pub. Safety v. Caruana, 363 S.W.3d 558 (Tex. 2012) (unsworn declarations may substitute for affidavits only when subscribed under penalty of perjury)