Opinion filed July 24, 2014




                                       In The


        Eleventh Court of Appeals
                                    ___________

                              No. 11-12-00228-CV
                                    ___________

                    DAVID ERIC MOLINAR, Appellant
                                         V.
                      LORRAINE MOLINAR, Appellee


                     On Appeal from the 326th District Court
                             Taylor County, Texas
                        Trial Court Cause No. 45,010-C

                      MEMORANDUM OPINION
       This is an appeal in a divorce action between David Eric Molinar and
Lorraine Molinar. After a hearing, the trial court granted the divorce, divided
certain property, appointed managing and possessory conservators of the parties’
child, and provided for certain rights and obligations in connection with
conservatorship of the parties’ minor child. Because he was dissatisfied with the
orders of the trial court, David filed this appeal. We affirm.
      Lorraine filed a petition for divorce in which she sought a divorce from
David and in which she sought to be named managing conservator of the parties’
minor child, S.E.M. David was in prison at the time for sexual assault of a minor
(the victim was not related to David), but he timely filed a pro se answer. His
answer contained a “Request for Appointment of Attorney Ad Litem and Motion
for Issuance of Bench Warrant.” David also filed a “Declaration of Inability to Pay
Cost,” an “Affidavit of Respondent’s Testimony,” and an “Unsworn Declaration of
Respondent’s Testimony.” David filed his answer and all of these requests on
February 9, 2012. David furnished an order to the trial court whereby the trial
court could grant his request for a bench warrant. Rather than grant his request,
however, on February 14, 2012, the trial court noted on the proposed order,
“denied at this time.” On that same day, the trial court ruled on David’s request for
the appointment of an attorney ad litem. The ruling by the trial court was that “the
Family Code does not provide for court appointments in these cases.” In response
to the trial court’s rulings, David filed what he called a “Notice of Appeal.” On
March 1, 2012, the trial court entered an order on the “Notice of Appeal” that
contained the notation “denied at this time.”
      When David filed his motions, the trial court had not set any hearings. None
of David’s motions were re-urged after the case was set for final hearing on
May 30, 2012. David did not participate in the final hearing although he was
notified of the setting. The trial court granted the divorce, divided the parties’
property and debts, appointed Lorraine as S.E.M.’s sole managing conservator, and
appointed David as a possessory conservator of the child. The trial court also
provided for various rights and obligations relative to conservatorship. The trial
court signed the final decree on June 21, 2012. None of those matters are issues in
this appeal.


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      David is pro se in this court. In his first issue, David asserts that the trial
court erred when it did not allow him the opportunity to be heard. In a portion of
his third issue, David claims that the trial court abused its discretion when it did
not allow him to appear at court physically or by alternative means. We will
discuss these two assertions together.
      It now goes without question that a litigant cannot be denied access to the
courts just because he is an inmate. In re Z.L.T., 124 S.W.3d 163, 165 (Tex. 2003).
But that right is not absolute. Id. It is a litigant’s obligation to show why his
appearance in court was necessary to preserve his constitutional rights. Id. at 166.
In Z.L.T., the court noted that the courts of appeals in Texas have recognized a
variety of factors for trial courts to consider when deciding whether to grant a
request for a bench warrant. “These factors include the cost and inconvenience of
transporting the prisoner to the courtroom; the security risk the prisoner presents to
the court and public; whether the prisoner’s claims are substantial; whether the
matter’s resolution can reasonably be delayed until the prisoner’s release; whether
the prisoner can and will offer admissible, noncumulative testimony that cannot be
effectively presented by deposition, telephone, or some other means; whether the
prisoner’s presence is important in judging his demeanor and credibility; whether
the trial is to the court or a jury; and the prisoner’s probability of success on the
merits.” Id. at 165–66. Except, perhaps, for the broad allegations in his motion
that he wanted to assist counsel and to testify in his own behalf as to “his desire to
care, love, and provide for his natural child,” David did not justify the need for his
physical presence at the final hearing. He did not establish the factors we have
outlined above. A trial court abuses its discretion when it acts without reference to
any guiding rules and principles. In other words, when the trial court’s action was
arbitrary or unreasonable. Downer v. Aquamarine Operators, Inc., 701 S.W.2d
238, 242–43 (Tex. 1985). Because David failed to make the required showing, the
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trial court did not abuse its discretion when it denied David’s request for a bench
warrant.
      In addition to asking for the bench warrant so that he could be personally
present for the hearing, David also asked that the trial court allow him to
participate by alternate means if the trial court denied the request for a bench
warrant. David asserts that the trial court erred when it conducted the final hearing
without giving him the opportunity to appear by an alternate means. Lorraine
counters that, when the trial court denied the requests, it noted that the denial was
limited to “at this time.” She reasons that, in the face of that notation by the trial
court, David was obliged to re-urge his motions after the trial court had actually set
the case for hearing.
      Even if we were to agree that David was not required to renew his requests
after the trial court set the case for hearing and that the trial court erred when it
conducted the hearing without providing an alternative means by which David
could appear, it would not produce a different result in this appeal. That is so
because any purported error cannot be the basis for a reversal of the trial court’s
judgment unless the error probably caused the rendition of an improper judgment.
TEX. R. APP. P. 44.1. David had the burden to show that the harm that he alleged
probably caused the rendition of an improper judgment; he has failed to do that.
See Mitchum v. Comm’n for Lawyer Discipline, 36 S.W.3d 612, 615 (Tex. App.—
Dallas 2000, pet. denied).
      After the hearing, the trial court appointed Lorraine the sole managing
conservator of S.E.M., appointed David as a possessory conservator of S.E.M., and
entered fairly standard conservatorship and support orders that would have been
imposed had he not been in prison. The only possible exception being that his
child support did not begin until the first day of the first month after his release
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from prison. David simply has not shown how his participation in the hearing
would have changed any of that and that the trial court’s failure to allow him to
appear by alternate means probably caused the rendition of an improper judgment.
Insofar as David’s claims regarding his being entitled to a reversal of the trial
court’s judgment because of its failure to issue a bench warrant or allow him to
appear at the hearing by some alternative means, issues one and three are
overruled.
       In his second issue and in a part of his third issue, David claims that the trial
court should have appointed counsel to represent him and that the trial court also
erred when “[c]ounsel was not appointed to their child ad litem to protect her best
interest.” Because they are related, we will discuss these issues together. We
likewise review this claim for an abuse of discretion. In re Z.L.T., 124 S.W.3d at
165.
       David confuses this case with cases in which termination of the parent-child
relationship or the appointment of a conservator for a child is sought by a
governmental entity. Section 107.013 of the Texas Family Code is the statutory
basis for the appointment of attorneys ad litem under some circumstances in those
types of cases. TEX. FAM. CODE ANN. § 107.013(a) (2014). The case before us is
not such a case. It is a divorce case filed by an individual and includes issues
regarding conservatorship and support of the parties’ child. Therefore, David was
not entitled to a court-appointed attorney. See In re G.J.P., 314 S.W.3d 217,
222–23 (Tex. App.—Texarkana 2010, pet. denied).
       As far as David’s complaint regarding the failure of the trial court to appoint
“their child ad litem to protect her best interest,” he made no request to the trial
court that it appoint an attorney ad litem for the child. In order to preserve error, a
party must make a timely objection or request to the trial court and secure a ruling
on it. Otherwise, it is not preserved. TEX. R. APP. P. 33.1(a). David did not
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preserve error in connection with the appointment of an attorney ad litem for his
daughter, and he has waived the complaint on appeal. We overrule those portions
of issue two and issue three that relate to the appointment of counsel for David and
the appointment of an ad litem for S.E.M.
      We have overruled all of David’s issues on appeal, and we affirm the
judgment of the trial court.




                                                   JIM R. WRIGHT
                                                   CHIEF JUSTICE


July 24, 2014
Panel consists of: Wright, C.J.,
Willson, J., and Bailey, J.




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