Alex Neal Jones v. Hiromi Jones

In The

Court of Appeals

Ninth District of Texas at Beaumont

________________

NO. 09-22-00101-CV
________________

ALEX NEAL JONES, Appellant

V.

HIROMI JONES, Appellee

________________________________________________________________________

On Appeal from the 418th District Court
Montgomery County, Texas
Trial Cause No. 21-04-04774-CV
________________________________________________________________________

MEMORANDUM OPINION

After the trial court dismissed the child custody claims of the suit Alex Jones

filed seeking to divorce his wife, Hiromi Jones, and to establish custody over their

children based on Hiromi’s Special Appearance and Answer asserting the parties

were involved in another suit involving the same claims in California, the trial court

dismissed the remainder of Alex’s claims which concerned the divorce for want of

prosecution. Alex appeals and he complains the trial court abused its discretion in

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dismissing his petition for want of prosecution. See Tex. R. Civ. P. 165a(3). We

affirm.

I. Background

Alex and Hiromi Jones were married in Japan in 1996. During their marriage,

they had two children and lived in Japan, Illinois, and California. When the parties

separated in 2020, Alex moved to Texas. Hiromi and the children remained in

California.1 In late March of 2021, Hiromi sued for divorce and to establish the

parties’ rights to the custody to their children in California. Soon thereafter, Alex

filed the same claims in the suit he filed in Texas.2

On the date scheduled for a hearing on temporary orders, May 13, 2021,

Hiromi filed a Special Appearance, objecting to the jurisdiction of the court to

adjudicate child custody issues under the Uniform Child Custody Jurisdiction and

Enforcement Act (U.C.C.J.E.A.) and alleging the court lacked subject matter

jurisdiction to adjudicate marital issues in Texas. See Tex. Fam. Code § 152.201. In

her special appearance, Hiromi averred that the proper court to adjudicate the issues

Alex had raised was in the suit she had filed in California, as that suit involved the

parties’ divorce and the issues that involved the respective parties’ rights to the

custody of the children. On that same day the trial court requested that the parties

1
For ease of reference, we use the parties’ first names.
2
Hiromi filed a special appearance shortly after the Texas suit was filed
alleging that Texas courts had no jurisdiction over her person or property.
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file UCCJEA affidavits, by May 14, so the court could consider the special

appearance and confer with the California court. On June 3, both attorneys and Alex

appeared but the trial court did not rule on any motions. On June 9, the court issued

its Docket Control Order, set the trial for October 25, 2021, and established certain

pretrial deadlines that included a deadline requiring the parties to file inventories 45

days before trial and to complete mediation before October 15.

On June 11, the trial court conferred with the judge of the California court,

determined the court in Texas lacked jurisdiction under the UCCJEA as to the child

custody issues, and dismissed those issues for lack of jurisdiction. The trial court

signed an order dismissing Alex’s claims as to the child custody claims on June 15,

2021.

On October 14, the parties filed an agreed motion for continuance,

representing that they had recessed mediation and needed more time “to investigate

the property issues.” That same day the court granted the agreed continuance and

issued a new Docket Control Order, which set the parties for trial on January 31,

2022, with a pretrial setting for January 21.

On January 21, however, neither Alex nor Hiromi attended the pretrial

conference, even though they were specifically required to do so by the trial court’s

Docket Control Order. That said, their attorneys appeared, and the court questioned

Alex’s counsel about the jurisdictional issues, as follows:

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THE COURT: . . . A determination has already been made by this court that
this court does not have child custody jurisdiction. I do not see a date of
separation in the petition, Mr. Parchman.
MR. PARCHMAN: I’ll fix that.
THE COURT: When did these people separate?
MR. PARCHMAN: I believe they separated around February of last year. I
have --
THE COURT: Of 2021.
MR. PARCHMAN: I don’t want to misspeak. I have to look at my file and
verify.
THE COURT: Where did they last live together before they separated?
MR. PARCHMAN: In California.
THE COURT: Did they ever reside together in Texas?
MR. PARCHMAN: No.
THE COURT: How would I have jurisdiction to divide the marital estate?
MR. PARCHMAN: Because he had lived here the requisite time.
THE COURT: Do you want to borrow my book and show me that?
MR. PARCHMAN: Sure.
THE COURT: Got you on hold.
MR. PARCHMAN: Thank you.
(Whereupon a recess was taken.)

After a brief recess, the following exchange occurred:

THE COURT: . . . I think Mr. Parchman was looking for something to show
me in the Family Code.
MR. PARCHMAN: Yes, Judge, 6.305(a)2.
THE COURT: Okay. So you recognize, or you’re acknowledging to me, by
skipping (a)1, that Texas is not the last marital residence of the two parties?
MR. PARCHMAN: That’s correct.
THE COURT: And since it wasn’t, obviously, this suit was not filed before
the second anniversary on the date before the date of the marital residence
ended.
MR. PARCHMAN: That’s correct.
THE COURT: If I’m hearing you correctly, this suit was filed in April of 2021
and in February of 2021, these parties were living together as husband and
wife in the state of California.
MR. PARCHMAN: No. I believe that’s incorrect.
THE COURT: Well, the petition doesn’t say a date of separation. That’s why
I asked.
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MR. PARCHMAN: I understand. I have to amend the petition, but he was
living here for six months.
THE COURT: All right. Has either party filed an inventory?
MR. PARCHMAN: No, Your Honor. We’re --we did file a continuance,
though, this morning.
THE COURT: The joint motion for continuance claimed that this is the first
trial setting which is not true. The case has been continued once before.
MR. PARCHMAN: Okay. Second.
THE COURT: Has anybody filed an inventory?
MR. CAIN: No, Judge.
THE COURT: All right. Case is going to be dismissed for want of prosecution
today. Y’all are free to go.

After the exchange, the trial court dismissed the case for want of prosecution.

The trial court’s order noted that the parties did not appear, that both attorneys

appeared, and that no inventories had been filed, and that final mediation had not

occurred prior to the final pretrial conference on January 21.

Alex filed a motion to reinstate arguing that the failure to file an inventory and

to complete mediation resulted from the need to have account statements that were

in Japanese translated into English. Alex claimed these failures were “not due to

conscious indifference but inadvertent.” Specifically, he represented he didn’t

comply with the deadline to file his inventory because the parties were waiting for

the account statements to be translated; he further noted that because the mediation

was started but not completed, the parties had filed an agreed motion for

continuance.

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II. Standard of Review

We review a trial judge’s dismissal for want of prosecution and a court’s

ruling on a motion to reinstate for an abuse of discretion. See MacGregor v. Rich,

941 S.W.2d 74, 75 (Tex. 1997) (dismissal for want of prosecution); Smith v. Babcock

& Wilcox Constr. Co., 913 S.W.2d 467, 468 (Tex. 1995) (denial of motion to

reinstate). “A trial court abuses its discretion when it acts with disregard of guiding

rules or principles or in an arbitrary or unreasonable manner.” In re Kappmeyer, 668

S.W.3d 651, 655 (Tex. 2023).

III. Analysis

A trial court has the authority to dismiss a case for want of prosecution, but it

must “reinstate the case upon a finding after a hearing that the failure of the party or

his attorney was not intentional or the result of conscious indifference but was due

to an accident or mistake or that the failure has been otherwise reasonably

explained.” 3 Tex. R. Civ. P. 165a(1), (3); Villarreal v. San Antonio Truck & Equip.,

994 S.W.2d 628, 630-31 (Tex. 1999) (discussing a trial court’s power to dismiss a

case for want of prosecution).

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No one disputes that the motion to reinstate was timely filed, that it was
verified, or that it failed to set for the grounds on which it was based. See Tex. R.
Civ. P. 165a(3). Cf. Watson v. Clark, No. 14-14-00031-CV, 2015 Tex. App. LEXIS
1707, at **5-6 (Tex. App.—Houston [14th Dist.] Feb. 24, 2015, no pet.) (mem. op.).
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In Smith, our Supreme Court held that even a calculated but erroneous act or

omission will not be considered “intentional or due to conscious indifference within

the meaning of the rule merely because it is deliberate; it must also be without

adequate justification. Proof of such justification -- accident, mistake or other

reasonable explanation -- negates the intent or conscious indifference for which

reinstatement can be denied.” 913 S.W.2d at 468 (emphasis added). In the instant

case, the trial court found Alex’s explanations for failing to comply with the trial

court’s Docket Control Deadlines insufficient given the fact that before dismissing

the case, the trial court had given the parties a continuance.4

The trial court’s Scheduling Order apprised the parties of the court’s

deadlines, specifically, that the parties had to file sworn inventories 45 days before

trial, and to complete mediation 15 days before trial. The trial court’s Scheduling

Order includes a requirement that the parties be present for the pretrial conference,

as it states:

DOCKET CALL-PRETRIAL CONFERENCE. (TIME: 9:00
a.m.). Parties shall be present and prepared to discuss all aspects of trial
with the court on this date. Parties shall comply with the enclosed Trial
Preparation Order –Family.

4
The trial court’s Order of Dismissal notes that Alex and Hiromi failed to
appear at docket call, that no inventories were filed, and states “no mediation[,]”
which we understand as meaning the mediation the parties represented they had
started before obtaining the continuance the trial court gave them in October 2021
was then not completed before the January 2022 pretrial conference deadline.
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NOTICE OF INTENT TO DISMISS ON DOCKET CALL-
PRETRIAL CONFERENCE DATE: THIS CASE MAY BE
DISMISSED FOR WANT OF PROSECUTION ON OR AFTER THE
DATE OF THE DOCKET CALL-PRETRIAL CONFERENCE if by
said date there is no:
a. Service with citation;
b. Answer or properly executed Waiver on file;
c. Mediation; or
d. Completion of approved PARENT EDUCATION PROGRAM, if
applicable.

Failure to appear at DOCKET CALL-PRETRIAL CONFERENCE
may result in the dismissal of the case, appropriate sanctions and/or
the exclusion of some or all of that party’s evidence.

(emphasis original)

The record supports the trial court’s order finding that Alex acted with

conscious indifference by failing to comply with the second of the trial court’s

Docket Control Orders. In the trial court, Alex had the burden to prove that his failure

to comply with the trial court’s orders resulted from an accident, mistake, or to

provide the trial court with a reasonable explanation for his failure to comply with

the trial court’s order. Alex did not appear for the January 21, 2022, final pretrial.

Alex failed to file an inventory 45 days before trial—even an inventory subject to

supplementation or amendment when the information from Japan was translated.

Alex provided no evidence of how long he had possession of the information written

in Japanese and did not provide evidence that he could not understand how to

translate the Japanese information himself, or through a Japanese interpreter (or even

“Google Translate”) at least 45 days prior to trial. Alex presented no evidence that
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he had sent the documents to be translated, when they were sent, calls to the

translation service to see when they would be back, or any explanation about why

an inventory couldn’t be timely filed. The trial court noted that the motion for

continuance heard on January 21, 2022, had averred that this was the first

continuance when, in fact, it was the second motion for continuance filed. This

indicates a potential intention to be less than frank with the court. It appears that the

only accident or mistake was in believing that the trial court would not follow

through on the stated requirements of the second Docket Control Order and dismiss

the case. Under these circumstances, we cannot say that the trial court abused its

discretion by impliedly finding that Alex’s failures were not merely inadvertent, but

were, instead, “intentional or due to conscious indifference.” Smith, 913 S.W.2d at

468; see also Coston v. Coston, No. 12-09-00458-CV, 2010 Tex. App. LEXIS 6645,

at **3-7, 15 (Tex. App.—Tyler Aug. 18, 2010, pet. denied) (mem. op.) (discussing

implied findings of conscious indifference in the context of affirming a default

judgment and noting that it is a fact question for the trial court to resolve). We also

cannot say that the trial court’s implied conclusion that the explanation given for

violating the second Docket Control Order was not reasonable. Id. at 15.

The trial court did not abuse its discretion in making this implied finding; we

therefore overrule Alex’s sole appellate point.

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IV. Conclusion

Because the trial court did not abuse its discretion by denying Appellant’s

motion to reinstate the suit, we affirm the judgment.

AFFIRMED.

JAY WRIGHT
Justice

Submitted on June 2, 2023
Opinion Delivered October 5, 2023

Before Golemon, C.J., Horton and Wright, JJ.

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