Aberegg, Russell D. v. Ceschan, Monica ( 2014 )

AFFIRM; and Opinion Filed June 25, 2014.
In The
Quztrt nf Appeals
iLftl! Distrirt of exas at Dallas
No. 05-12-01000-CV
RUSSELL D. ABEREGG. Appellant
V.
MONICA CESCHAN, Appellee
On Appeal from the 330th Judicial District Court
Dallas County, Texas
Trial Court Cause No. DF-12-00023
MEMORANDUM OPINION
Before Justices &Neill, Myers, and Brown
Opinion by Justice Brown
Russell D. Aberegg appeals the default final decree of divorce rendered atier Aberegg
failed to appear for trial. On appeal, Aberegg contends (l)the trial court violated his due process
rights, (2) the division of property was not adjudicated in a just. fair, equitable, and impartial
manner, and (3) the trial court allowed Monica Ceschan and her counsel to perpetrate a felony
and conspiracy. We overrule Aberegg’s issues and affirm the trial court’s judgment.
Background
On January 3, 2012, Ceschan filed a petition for divorce from Aberegg who was
incarcerated at the time. Aberegg, representing himself, timely answered. In May. Aheregg
filed a motion for electronic presence at the pretrial hearing. The record does not reflect whether
the trial court granted Aberegg’s request, but the docket sheet shows a pretrial hearing was held
on May 7, 2012. The same day, the trial court signed an order setting a bench trial on June 26,
2012. On June 21, 2012, Aberegg flied a motion for writ of injunction to stay proceedings. In
that motion, Aberegg requested the trial court to stay the divorce proceedings for 183 days until
he was released from incarceration. Aberegg did not request a bench warrant, nor did he request
to be allowed to appear by any other means. On June 26, the trial court rendered a default decree
of divorce after Aberegg failed to appear. Aberegg did not file a motion for new trial, but rather
timely filed a notice of appeal in this Court.
Discussion
In his first issue, Aberegg contends his due process rights were violated. Although
difficult to ascertain, it appears Aberegg complains the trial court erred by not appointing
counsel to represent him at trial, and by waiving his right to a jury without his consent. After
reviewing the record, we conclude Aberegg’s arguments lack merit.
We review a trial court’s refusal to grant a jury trial under an abuse of discretion
standard. Mercedes-Benz Credit Corp. v. Rhvne, 925 S.W.2d 664, 666 (Tex. 1996). The right to
a jury trial is guaranteed by the Texas Constitution. See TEX. CONST. art. I § IS. The
requirement of an express waiver of jury trial lies in the Texas Code of Criminal Procedure. In
re K.C., 23 S.W.3d 604, 608-09 (Tex. App.—Beaumont 2000, no pet.); see TEX. CODE CRIM.
PROC. ANN., art. 1.13 (West 2005). In contrast, in civil cases, the right of trial by jury is not
automatic, but arises only where a party has demanded a jury trial and paid the applicable fee. In
re J.N.P., 116 S.W.3d 426, 431 (Tex. App.—Houston [14th Dist.] 2003, no pet.).
Under Texas Rule of Civil Procedure 2 16(a), a party desiring a jury trial must make a
written request for a jury not less than thirty days before the date set for trial of the cause on the
non-jury docket. TEX. R. Civ. P. 2 16(a). A party must also deposit a fee with the clerk of the
court within the time for making a written request for a jury trial. TEX. R. Civ. P. 216(h). A party
who is unable to afford the deposit for the jury fee shall tile an affidavit to that effect within the
—2—
lime for making such deposit; and the court shall then order the clerk to enter the suit on the jury
docket. Tex. R. Civ. P.217. An inmate in the Texas Department of Criminal Justice may t5le an
unsworn declaration in lieu of an affidavit. Thx. Civ. PRAC. & REM. CODE ANN. § 132.00 1(a)
(West Supp. 2013).
Here, Aberegg, did not make a request for a jury trial. Because the rules of civil
procedure do not require an express waiver of trial by jury and because appellant did not request
a jury or object to the bench trial, we conclude appellant’s complaint that the trial court violated
his due process rights by waiving his right to a jury without his consent lacks merit.
Aberegg also contends the trial court violated his due process rights by failing to appoint
counsel to represent him at trial. We review such complaints for an abuse of discretion. See
Coleman v. Lynaugh, 934 S.W.2d 837, 839 (Tex. App.—Houston Fist Dist.j 1996, no writ).
Section 24.016 of the Texas Government Code provides that a district court may appoint
counsel for an indigent civil litigant. TEX. Govt CODE ANN. § 24.0 16 (West 2004). The
supreme court has never held that a civil litigant must be represented by counsel for a court to
carry on its essential, constitutional function. Gibson v. Tolbert, 102 S.W.3d 710, 711 (Tex.
2003). The supreme court has suggested, however, that under exceptional circumstances, “the
public and private interests at stake may be such that the administration of justice would best be
served by appointing a lawyer to represent an indigent civil litigant.” Id. Consequently, courts
of appeals have determined that a trial court does not abuse its discretion in refusing to appoint
counsel to represent an indigent civil litigant unless the party requesting appointment
demonstrates why the public and private interests at stake are so exceptional that the
administration of justice would best be served by appointing an attorney to represent him. Id.;
Hines i’. Massey, 79 S.W.3d 269, 272 (Tex. App.—Beaumont 2002, no pet.): Coleman, 934
S.W.2d at 839. An exceptional circumstance is by definition rare and unusual. Gibson, 102
—3—
S.W.3d at 711. And, incarceration alone does not constitute an exceptional circumstance such
that it warrants appointed counsel. See Id.
Here, although Aberegg provided an affidavit of indigency, he did not demonstrate any
circumstances that would characterize this case as exceptional. Therefore, we cannot conclude
the trial court violated his due process rights by failing to appoint counsel to represent him. We
overrule Aberegg’s first issue.
In Aberegg’s second, third, and fourth issues, Aberegg contends the division of the
marital estate was not adjudicated in a just, fair, and, equitable manner, and the trial court
allowed Ceschan and her counsel to perpetrate a felony and conspiracy. After reviewing
Aberegg’s brief, we conclude he, although given the opportunity, failed to adequately brief these
issues. Thus, we conclude there is nothing for our review.
Only when we are provided with proper briefing may we discharge our responsibility to
review the appeal and make a decision that disposes of the appeal one way or the other. Boiling
i’. Farmers Branch Intl. 5th. Dist., 315 S.W.3d 893. 895 (Tex. App.— Dallas 2010, no pet.).
We are not responsible for identifying possible trial court error Id.; Canton—Carter i’. Baylor
College QfMedwtI?e, 271 S.W.3d 928, 931 (Tex. App.—Houston [14th Dist.] 2008, no pet.). We
are not responsible for searching the record for facts that may be favorable to a party’s position.
See Fredonk, State Bank v. Ge,i. Am. Life Ins. Co., 881 S.W.2d 279, 283—84 (Tex. 1994);
Boiling, 315 S.W.3d at 895. And, we are not responsible for doing the legal research that might
support a party’s contentions. See Boiling, 315 S.W.3d at 895; Canton—Carter, 271 S.W.3d at
93!. Were we to do so, even for a pro se litigant untrained in law, we would be abandoning our
role as judges and become an advocate for that party. Boiling, 315 S.W.3d at 895.
When deciding whether an appellant’s brief is deficient, we do not adhere to any rigid
rule about the form of a brief. Pro se litigants may not be versed in the form of briefing favored
by seasoned appellate practitioners. We do, however, examine briefs for compliance with
prescribed briefing rules, including specifically, rule 38.1. TEx. R. App. P. 38.1. If we can
conclude a brief complies with the Texas Rules of Appellate Procedure, we submit the appeal for
review and decision on the merits. If we conclude that it does not, we may decline to address the
issue. ionize,, v. Am. Nat. Baizk of Te.v NA, 300 S.W.3d 412, 417 (Tex. App. Dallas—2009, no
pet.).
To comply with rule 38.1 U’). an appellant must articulate the issue we will be asked to
decide. From our perspective, we must be able to discern what question of law we will be
answering. Boiling, 315 S.W.3d at 896. If an appellant is unable to or does not articulate the
question to be answered, then his brief fails at that point. If the issue is identified, then rule
38.10) calls for the brief to guide us through the appellant’s argument with clear and
understandable statements of the contentions being made. If we must speculate or guess about
what contentions are being made, then the brief fails. Id. Importantly, statements of fact and the
argument must be supported by direct references to the record that are precise in locating the fact
asserted. If record references are not made or are inaccurate, misstated, or misleading, the brief
fails. Id. And, just as importantly, existing legal authority applicable to the facts and the
questions we are called on to answer must he accurately cited. References to legal authority that
have nothing to do with the issue to be decided are contrary to the requirement of rule 38.1(i).
References to sweeping statements of general law are rarely appropriate. Id. If we are not
provided with existing legal authority that can be applied to the facts of the case, the brief fails.
Id.
The argument under Aberegg’s second and fourth issues consists of a statement that due
to a lack of resources and time constraints, argument under these issues will be presented in a
motion for amendment. Aberegg did not, however, file any such motion. The argument under
—5—
Aberegg’s third issue does not contain record citations and the only citation to authority is to the
penal code section for aggravated perjury. Although we notified Aberegg that his brief was
deficient and instructed him to file an amended brief that complied with the rules of appellate
procedure within ten days, Aberegg did not do so. Rather. Aberegg tiled a motion for remand
for a hearing. We denied Aberegg’s request for a remand and submitted the case on Aberegg’s
original brief. Under these circumstances, we conclude Aberegg’s second, third, and fourh
issues are inadequately briefed and present nothing for our review.
Accordingly, we affirm the trial court’s final decree of divorce.
/Ada Brown!
ADA BROWN
JUSTICE
121 000F.P05
—6—
Court uf Appeals
lFiftIi District uf LLCXUS at Dallas
JUDGMENT
RUSSELL D. ABEREGG, Appellant On Appeal from the 330th Judicial District
Court, Dallas County, Texas
No. 05-12-OI000-CV V. Trial Court Cause No. DF-12-00023.
Opinion delivered by Justice Brown.
MONICA CESCHAN, Appellee Justices O’Neill and Myers participating.
In accordance with this Court’s opinion of this date, the judgment of the trial court is
AFFIRMED.
ft is ORDERED that appellee MONICA CESCRAN recoxer her costs of this appeal
From appellant RUSSELL D ABEREGG.
Judgment entered this 25th day of June, 2014
/Ada Brown!
ADA BROWN
JUSTICE
—7—