Marr v. Marr , 1995 Tex. App. LEXIS 1714 ( 1995 )

OPINION

CUMMINGS, Justice.

Appellant Peggy Pickering Marr appeals the trial court’s division of her and Appellee’s marital estate. We reverse and remand.

PROCEDURAL AND FACTUAL BACKGROUND

The parties married on or about November 26, 1982, and separated for the final time in September of 1991. Appellee James Evan Marr filed his original petition for divorce on June 29, 1990, in the 19th District Court of McLennan County. Appellant answered with a general denial on August 3, 1990.

On January 19, 1993, Appellee filed a “Request For Production of Documents.” Over the next seven months, Appellant, despite repeated requests and inquiries by Appellee’s counsel, never produced the documents. Notwithstanding Appellant’s failure to produce the requested documents, she, on or about June 29, 1993, requested a jury trial and paid the appropriate jury fee. Because the requested documents were never produced, Appellee on July 29, 1993, filed a “Motion to Compel and For Contempt and Sanctions,” and on January 3, 1994, the trial court entered an order compelling Appellant to turn over the documents. By a week later Appellant still had not produced the requested documents; accordingly, on January 10 Appellee filed a motion for sanctions, asking the court to order Appellant to pay attorney’s fees and to strike Appellant’s pleadings if the requested documents were not produced by a given date. A hearing on the motion was scheduled for January 11.

At the January 11 hearing, Appellant’s attorney did not appear because she was ill; the attorney’s partner, however, did appear on her behalf. The trial court, at the hearing, granted Appellant’s motion for a continuance and rescheduled the trial date for February 22,1994; the court also granted Appel-lee’s motion for sanctions and ordered that the requested documents be produced by 5:00 p.m. on January 31, 1994, or Appellant’s pleadings would be stricken and Appellee would be permitted to take a default judgment. See Tex.R.Civ.P. 215(2)(b)(5). Appellant failed to produce the documents by the end of the day on January 31.

On February 1, 1994, Appellee and his attorney appeared before the 19th District Court to prove up Appellee’s divorce petition and receive the default judgment threatened by the court on January 11. The trial court telephoned Appellant’s attorney’s partner moments before the hearing was conducted to let him know of the court’s proposed action, but other than the telephone call Appellant received no notice of the hearing on the property division. Appellant was never warned that if she failed to produce the requested documents by January 31 that a hearing on the division of the marital property would be conducted the next day. Nevertheless, the property division hearing was conducted on February 1 without the presence of Appellant or any of her legal representatives, and the Pinal Decree of Divorce was entered February 4, dividing the marital estate in the manner requested by Appellee in every respect.

Through five points of error Appellant argues: (1) and (2) the trial court erred in conducting the February 1, 1994, property division hearing without giving her sufficient notice; (8) Appellant was deprived of her right to a jury trial when the court conducted the property division hearing without a jury; (4) the trial court erred in failing to order a just and right division of the marital estate; and (5) the trial court erred in characterizing several items of property as Appellee’s separate property when they should have been characterized as community property. We reverse and remand for a new property division hearing.

WHETHER APPELLANT WAS GIVEN SUFFICIENT NOTICE OF THE PROPERTY DIVISION HEARING

In eases involving unliquidated damages or claims not proven by written instruments, Ride of Civil Procedure 243 requires parties who have properly requested a jury trial be provided sufficient notice of a hearing before a jury on the issue of damages even though they forfeited their arguments on the merits of the case by allowing a judgment of default to be entered against them. Tex.R.Civ.P. 243.¹ The defaulting party is entitled to notice by a writ of inquiry of the date for his hearing on damages before a jury once the default judgment has been entered. Id.² Upon inquiry into the amount of unliquidated damages after a default judgment, the defaulting party has the right to be present, to interpose objections to testimony offered by the plaintiffs witnesses, and to cross-examine them in order that, by the exclusion of improper evidence, a proper judgment may be rendered on competent evidence. Bass v. Duffey, 620 S.W.2d 847, 849-50 (Tex.Civ.App.—Houston [14th Dist.] 1981, no writ).

The question before us is whether Rule 243 applies in divorce eases; we will therefore examine the rule to ascertain its meaning and scope. Rule 243 recognizes, first, the importance of a party’s right to a trial by jury, and, second, that the determination of the amount of damages is a question primarily for the jury. See Mackey v. Bradley Motors, Inc., 871 S.W.2d 243, 247-48 (Tex.App.—Amarillo), rev’d on other grounds, 878 S.W.2d 140 (Tex.1994) (per curiam); Hanners v. State Bar of Texas, 860 S.W.2d 903, 910-11 (Tex.App.—Dallas 1993, no writ)³; see also Davis v. City of Galveston, 635 S.W.2d 634, 635 (Tex.App.—Waco 1982, no writ). It assures defaulting defendants, provided they properly request and do not waive a trial by jury, that they will be afforded their right to have a jury weigh the facts underlying the plaintiffs complaint for unliquidated damages and ascertain from those facts the amount of their damages. Hanners, 860 S.W.2d at 911.

We believe Rule 243 applies in cases involving the division of marital property as well as the proper characterization of the parties’ assets as either community or separate. The prominent role of a jury in divorce cases is readily apparent. Parties to divorce proceedings are entitled to a jury trial upon proper request; the jury alone decides whether contested assets will be characterized as either community or separate; and, while the question of a just and right division of the marital estate rests solely within the sound discretion of the court, the jury’s findings on the factual issues underlying the division of the marital estate, including the valuation of the assets, are conclusive. Tex.Fam.Code Ann. §§ 3.61, 3.63 (Vernon 1993); In re Marriage of Moore, 890 S.W.2d 821, 834 n. 7; 838 (Tex.App.—Amarillo 1994, no writ); Archambault v. Archambault, 763 S.W.2d 50, 51 (Tex.App.—Beaumont 1988, no writ). Given the right of parties to a jury trial in divorce cases and the pronounced functions of the jury in the property division and characterization aspects of divorce cases, we believe the nature of the property division to be sufficiently akin to the unliquidated damages referred to in Rule 243 so as to require defaulting parties in divorce eases be provided sufficient notice of a hearing before a jury on the issue of the property division, unless, of course, the defaulting party somehow waives his request for a jury. See Bradley Motors, 878 S.W.2d at 141.

Here, Appellant timely requested a jury trial and paid the necessary jury fee. She was notified if she failed to produce by January 31,1994, certain documents that had been requested by Appellee, a default judgment would be entered against her and her pleadings would be stricken. Appellant failed to timely produce the documents. The next day, on February 1, a default judgment was entered against her; her pleadings were stricken; and Appellee appeared before the court for a property division hearing to prove up the allegations in his pleadings. Other than a telephone call to Appellant’s attorney moments before the hearing, Appellant received no notice of this hearing. Legally sufficient notice of this hearing was required by Rule 243. Accordingly, the court erred in conducting the hearing without providing Appellant sufficient notice of it or a jury trial.

The situation here differs from that in Lind v. Gresham, 672 S.W.2d 20 (Tex.App.—Houston [14th Dist.] 1984, no writ), where there was no request for a jury trial. In Lind, the Fourteenth Court held that when a defendant defaults in an unliquidated damages ease, he is entitled to notice only when an evidentiary hearing on damages is held subsequent to the hearing on the plaintiffs motion for sanctions. Id. at 22. But, held the court, when the trial court hears evidence on damages at the same time it conducts a hearing on the plaintiffs motion for sanctions, there is no requirement that the defendant receive any independent notice of the evidentiary hearing on damages. Id. When a jury trial is requested in cases involving unliquidated damages, however, Rule 243 requires that a writ of inquiry be issued before the evidentiary hearing on damages is conducted. Tex.R.Civ.P. 243. The writ of inquiry is a deferred hearing, meaning that it is to take place at a time subsequent to the court’s rendition of an interlocutory default judgment. Mackey, 871 S.W.2d at 248. Therefore, in cases involving unliquidated damages where the defaulting defendant has properly requested a jury trial, the defendant is entitled to notice of an evidentiary hearing on damages to be held on a date following the entering of the default judgment on the underlying cause or causes of action.

The portion of the judgment relating to the property division is reversed and that portion of the cause is severed and remanded for a new property division hearing. Otherwise the judgment is affirmed.⁴

1 . Reference to unliquidated damages shall also refer to damages, whether liquidated or unliqui-dated, not proven by a written instrument. See Tex.R.Civ.P. 243.

2 . An actual writ does not issue; a writ of inquiry in the modem day simply means that the court has agreed to hold a damage assessment hearing before a jury. Mackey v. Bradley Motors, Inc., 871 S.W.2d 243, 246 (Tex.App.—Amarillo), rev'd on other grounds, 878 S.W.2d 140 (Tex.1994) (per curiam).

3 . The courts in Bradley Motors, Inc. v. Mackey, 878 S.W.2d 140 (Tex.1994) (per curiam), and Hanners v. State Bar of Texas, 860 S.W.2d 903 (Tex.App.—Dallas, no writ), found that, where the defendant is defaulted because he fails to appear at the time of trial, the defendant will be found, due to the operation of Tex.R.Civ.P. 220, to have waived his right to a hearing, either before the bench or before a jury, on the issue of unliq-uidated damages. Bradley Motors, 878 S.W.2d at 141; Hanners, 860 S.W.2d at 911. Under the facts here, Rule 220 does not apply. Appellant defaulted because of the "death penalty” sanctions visited upon her, not because she failed to appear on her trial date.

4 . Because we dispose of this appeal on a single point of error, it is unnecessary for us to address Appellant’s remaining points of error.