
  
 






NUMBER 13-01-603-CV


COURT OF APPEALS


THIRTEENTH DISTRICT OF TEXAS


CORPUS CHRISTI-EDINBURG

 

LOAN THI HOANG NGO ,                                                                	Appellant,

v.


SON DUC NGO ,	Appellee.
 

On appeal from the 156th District Court   

of Aransas County, Texas.

 

OPINION


Before Chief Justice Valdez and Justices Yañez and Castillo



Opinion by Chief Justice Valdez  


 Appellant, Loan Thi Hoang Ngo, appeals from a final divorce decree.  Through two
issues, she argues the trial court erred in dividing custody of her four children and in
denying her counsel's request for continuance.  We affirm.
Facts and Procedural History
After eighteen years of marriage to the appellant, the appellant's husband/appellee,
Son Duc Ngo, filed for divorce in 2000.  Appellant answered with a counterpetition for
divorce.  Both parties agreed to postpone the original trial date of July 5, 2000, due to a
conflict in the appellee's counsel's schedule.  On April 18, 2001, notice of the new trial date
of May 22, 2001, was mailed to the parties' respective counsel.  Counsel for appellant
informed her, both in writing and orally, about the May 22, 2001, trial date.  The morning
before the trial, appellant's counsel learned from a friend of appellant of the appellant's
doctor's appointment on the day of the trial, but did not attempt to contact appellant until
after the trial.  Appellant had known of her appointment since May 14, 2001, but did not
attend the May 22, 2001, trial. 
Appellant's counsel moved twice for a continuance during the bench trial.  The trial
court denied both motions, heard the appellee's testimony, and granted the divorce.  The
appellee was awarded custody of the oldest child, and appellant was awarded custody of
the three younger children.  The trial court did not file, nor did the parties request, findings
of facts or conclusions of law.
Appellant filed a motion for a new trial, which was denied as a matter of law.  She
argues, through two points of error, that the trial court erred in: (1) dividing custody without
clear and compelling reasons, and by (2) denying her counsel's requests for a continuance.
	The trial court has wide discretion in awarding custody, Pena v. Pena, 8 S.W.3d
639, 639 (Tex. 1999), and in determining a child's best interests.  Gillespie v. Gillespie, 644
S.W.2d 449, 451 (Tex. 1982); see also Tex. Fam. Code Ann. § 153.002 (Vernon 2002). 
An appellant must show a clear abuse of discretion to successfully challenge a division of
custody.  Gillespie, 644 S.W.2d at 451. 
Division of Custody
	In her first point of error, appellant argues the trial court abused its discretion in
dividing custody.  Custody of children of a marriage should not be divided except for clear
and compelling reasons.  Zuniga v. Zuniga, 664 S.W.2d 810, 812 (Tex. App.-Corpus
Christi 1984, no writ).  However, under the mootness doctrine, a justiciable controversy
must exist between the parties at every stage of the legal proceedings, including the
appeal.  Williams v. Lara, 52 S.W.3d 171, 184 (Tex. 2001).  An issue becomes moot when
the controversy ceases to exist, and courts have no jurisdiction to issue advisory opinions
under the Texas Constitution.  Valley Baptist Med. Ctr. v. Gonzalez, 33 S.W.3d 821, 822
(Tex. 2000).  Because Thuan, the only child awarded to appellee, has reached the age of
majority, (1) appellant now has custody of all the children.  As such, the divided-custody issue
is moot, provided no exceptions apply.
	Texas courts recognize three exceptions to mootness: (1) capable of repetition while
avoiding review, (2) collateral consequences, and (3) public interest.  Fed. Deposit Ins.
Corp. v. Nueces County, 886 S.W.2d 766, 767 (Tex. 1994) (recognizing the first two
exceptions); Univ. Interscholastic League v. Buchanan, 848 S.W.2d 298, 304 (Tex.
App.-Austin 1993, no writ) (recognizing the public-interest exception to the mootness
doctrine).
A. Repetition Exception
	The repetition exception applies when the issue avoids appellate review because
the potentially recurring act which creates the issue is of a short duration, and when a
reasonable expectation exists that the "complaining party" will again be subject to the act. 
Lara, 52 S.W.3d at 184.  The act in this case is the division of custody.  Because of the
stringent requirements to justify a change in custody, we cannot say that a division of
custody is an act of such short duration that judicial review is precluded. Jones v. Cable,
626 S.W.2d 734, 736 (Tex. 1981) (stating that to successfully change a custody order, the
appellant must show that changes in the situation and character of the custodians are so
material and substantial as to make a change in custody in the child's best interest); see
also Tex. Fam. Code Ann. § 156.101 (Vernon 2002) (providing grounds for modification of
order establishing conservatorship or possession and access).  As such, the repetition
exception is inapplicable.
B. Collateral-Consequences Exception
	The collateral-consequences exception applies when prejudicial effects of an event
are not absolved by dismissing the issue as moot.  Gen. Land Office v. Oxy U.S.A., Inc.,
789 S.W.2d 569, 571 (Tex. 1990).  The Texas Supreme Court in Oxy U.S.A., Inc. notes
that the collateral-consequences exception applies when the prejudicial effects continue
"to stigmatize helpless or hated individuals long after the unconstitutional judgment has
ceased to operate." Id.  For example, involuntary commitment to a mental hospital was
found to be stigmatizing, State v. Lodge, 608 S.W.2d 910, 912 (Tex. 1980), adjudication
as a juvenile delinquent was found to have "deleterious collateral effects and legal
consequences," Carrillo v. State, 480 S.W.2d 612, 617 (Tex. 1972), and being a subject
of a protective order has legal repercussions and a social stigma. In re Cummings, 13
S.W.3d 472, 475 (Tex. App.-Corpus Christi 2000, no pet.).
	Because a custody order is not like one for involuntary commitment or juvenile
delinquency, which may stigmatize if not addressed by appeal, and because this case
presents neither helpless nor hated individuals facing some stigma, such as one wrongfully
convicted of a crime, the collateral-consequences exception is inapplicable to this case. 
See Spring Branch I.S.D. v. Reynolds, 764 S.W.2d 16, 19 (Tex. App.-Houston [1st Dist.]
1988, no writ) (finding no stigma in not receiving a track medal when prevented from
participating in high-school track-and-field competition).      
C. Public-Interest Exception
	The public-interest exception allows appellate review of an issue of considerable
public importance if that issue is capable of repetition between either the same parties or
other members of the public, but for some reason evades appellate review.  Texas Dep't
of Pub. Safety v. Lafleur, 32 S.W.3d 911, 914 (Tex. App.-Texarkana 2000, no pet.).  If
courts have previously considered the issue, then it does not evade appellate review.  See
F.D.I.C. v. Nueces County, 886 S.W.2d 766, 767 (Tex. 1994) (the public-interest exception
does not apply to the issue of whether certain liens are property because courts have
previously addressed that issue on its merits).
	In the present case, the issue is whether the trial court abused its discretion in
dividing custody.  Many courts have addressed that issue on its merits. (2)  Thus, the public-interest exception does not apply here because the issue does not evade appellate
review. (3)
	Having determined that the divided-custody issue is moot and that none of the
exceptions apply, we need not decide whether the trial court erred in dividing custody.
Speer v. Presbyterian Children's Home & Serv. Agency, 847 S.W.2d 227, 229 (Tex. 1993) 
("Dismissal for mootness is not a ruling on the merits.").  Appellant's first point of error is
overruled.
Denial of Continuance
Appellant argues in her second point of error that the trial court erred in denying the
request for a continuance.  Appellant argues that her friend's phone call advising counsel
that she could not make the hearing due to a doctor's appointment constitutes sufficient
evidence to support her request for a continuance.  This information was elicited by
counsel upon questioning by the trial court as to appellant's absence.   
Granting or denying a motion for continuance is within the trial court's sound
discretion.  Villegas v. Carter, 711 S.W.2d 624, 626 (Tex. 1986).  Unless the record shows
a clear abuse of discretion, we will not reverse a trial court's decision.  Id.
The absence of a party, by itself, is not sufficient to entitle her to a continuance. 
Brown v. Brown, 599 S.W.2d 135, 137 (Tex. Civ. App.-Corpus Christi 1980, no writ).  The
appellant must show that the denial resulted in her prejudice and that she had a
reasonable excuse for her absence.  Id.  Furthermore, the trial court is not required to grant
a continuance when there is a complete lack of diligence.  Southwest Country Enter. v.
Lucky Lady Oil Co., 991 S.W.2d 490, 493 (Tex. App.-Fort Worth 1999, pet. denied). 
Texas Rule of Civil Procedure 252 requires the party seeking continuance to show due
diligence in procuring material testimony.  Tex. R. Civ. P. 252; See also State v. Wood Oil
Distrib., Inc., 751 S.W.2d 863, 865 (Tex. 1988) (party that does not diligently use discovery
procedures can seldom claim reversible error when the trial court denies a motion for
continuance).   
In the present case, appellant was represented by counsel for approximately one
year, she had notice of the new trial date of May 22, 2001, and the case had been on
docket for over 13 months.  She does not explain why she failed to exercise due diligence
in procuring testimony and evidence that may have resulted in a more favorable division
of custody and property.  Remanding the case for failure to grant a continuance would
improperly reward the lack of diligence at the non-moving party's expense.  Id. 
Accordingly, we hold the trial court's denial of a continuance was not without reference to
guiding rules and principles and was not an abuse of discretion. Id.  Appellant's second
point of error is overruled.  
We affirm.

  
								ROGELIO VALDEZ
								Chief Justice

 

Opinion delivered and filed
this 21st day of  August, 2003.
1.  According to the final decree of divorce, Thuan was born on February 17, 1984,
thereby reaching the age of majority on February 17, 2002.  Unless provided otherwise in
the Texas Alcoholic Beverage Code, the age of the majority in Texas is 18 and has been
since 1973.  Smith v. Merritt, 940 S.W.2d 602, 606 (Tex. 1997); see also Fam. Code Ann.
§ 152.102(2) (Vernon 2002) (defining "child" as individual less than 18 years of age).
2. Renfro v. Renfro, 497 S.W.2d 807, 808 (Tex. Civ. App.-Waco 1973, no writ)
(finding no abuse of discretion in division of custody); Ponder v. Rice, 479 S.W.2d 90, 95
(Tex. Civ. App.-Dallas 1972, no writ) (finding abuse); Liska v. Hall, 357 S.W.2d 601, 603
(Tex. Civ. App.-Dallas 1962, no writ) (finding no abuse); Bartlett v. Bartlett, 293 S.W.2d
508, 513 (Tex. Civ. App.-Amarillo 1956, writ ref'd n.r.e.) (finding no abuse); Rousseau v.
Rousseau, 268 S.W.2d 556, 557-58 (Tex. Civ. App.-Waco 1954, no writ) (finding no
abuse).
3.  We note that the validity of the public-interest exception has been questioned. 
Olson v. Comm'n for Lawyer Discipline, 901 S.W.2d 520, 523 n.2 (Tex. App.-El Paso
1995, no pet.) (not applying the exception because the Texas Supreme Court has refused
to consider its validity).

