Denial of Continuance After Counsel Withdrawal | Martin v. Martin (2026)

Rhonda Cherie Martin v. David Lee Martin, 03-25-00394-CV, August 27, 2026.

On appeal from County Court at Law of Burnet County

Synopsis

A Texas trial court did not abuse its discretion by denying a continuance after the wife’s counsel withdrew approximately two months before final divorce trial and replacement counsel appeared only one day before trial. Under Texas Rule of Civil Procedure 253, the absence of counsel is not itself good cause, and the record did not show diligence, preserved surprise, or concrete prejudice sufficient to require postponement.

Relevance to Family Law

This opinion matters in divorce and property cases because continuance disputes frequently arise when trial settings harden, attorneys withdraw, amended pleadings are filed late in the case, or a party seeks more time to prepare for a final merits hearing. Martin reinforces that, in family law litigation, appellate courts will look beyond the mere fact of withdrawal and will evaluate the entire procedural history, the time available to retain new counsel, preservation of surprise complaints, and whether the movant created a record showing diligence and actual prejudice. For trial lawyers, the case is a reminder that a Rule 253 continuance request must be built like an appellate issue, not presented as an equitable plea untethered to evidence.

Case Summary

Fact Summary

The divorce had been pending since September 2022. On February 3, 2025, the wife’s attorney filed an agreed motion to withdraw, expressly noting that the case was already set for final trial on April 10, 2025. The trial court granted the withdrawal on February 5, 2025, leaving the wife roughly two months before trial to retain replacement counsel.

During that period, the husband filed a counterpetition and then, on April 2, 2025, filed an amended counterpetition adding a fraud claim tied to alleged quitclaim deeds concerning community property. That same day, the wife, acting pro se, moved for a continuance, asserting that she needed additional time to hire new counsel and to mediate. On April 9, 2025, one day before trial, her new attorney appeared and filed another continuance motion, stating that counsel needed more time to gather and review the file, evidence, pleadings, and prior orders in order to prepare for trial.

The trial court heard the continuance request on the day of the bench trial, denied it on the record, and proceeded to trial. After entry of the final divorce decree, the wife appealed pro se and challenged, among other things, the denial of the continuance and the alleged lack of notice associated with the husband’s amended counterpetition.

Issues Decided

• Whether the trial court abused its discretion by denying a continuance after the wife’s original counsel withdrew shortly before final trial and new counsel appeared only two days before trial.
• Whether the wife established inadequate notice or reversible surprise based on the husband’s amended counterpetition filed shortly before trial.
• Whether the wife adequately preserved and briefed other complaints concerning property division and an alleged conflict of interest involving opposing counsel.

Rules Applied

The court’s analysis centered on familiar continuance principles:

• Texas Rule of Civil Procedure 253: absence of counsel is not good cause for a continuance or postponement when the case is called for trial, unless the trial court, in its discretion, allows it.
• BMC Software Belgium, N.V. v. Marchand, 83 S.W.3d 789, 800 (Tex. 2002): denial of a continuance is reviewed for abuse of discretion.
• Villegas v. Carter, 711 S.W.2d 624, 626 (Tex. 1986): establishes the governing abuse-of-discretion framework in continuance cases involving withdrawal of counsel.
• In re Harrison, 557 S.W.3d 99, 140 (Tex. App.—Houston [14th Dist.] 2018, pet. denied): in deciding whether to grant a continuance after withdrawal of counsel, the trial court may consider the entire procedural history of the case.
• Texas Rule of Civil Procedure 245: governs assignment of cases for trial, but does not establish a 30-day bar for amended pleadings.
• Texas Rule of Civil Procedure 63 and Texas Rule of Appellate Procedure 33.1: surprise, prejudice, and complaints about amended pleadings must be preserved in the trial court.

The court also relied on Texas appellate briefing rules, particularly Rule 38.1, to reject inadequately briefed issues.

Application

The Third Court approached the continuance issue the way appellate courts usually do: by asking whether the record demonstrated a clear abuse of discretion, not whether another judge might have granted more time. That framing was decisive. The wife argued that she acted diligently and that new counsel needed additional preparation time, but the court found no record citations establishing the asserted diligence. The existing record instead showed a very old case—pending for roughly two and a half years—and a withdrawal order entered more than two months before final trial. From the court’s perspective, that timeline substantially undercut any claim that the denial was arbitrary or unreasonable.

The amended counterpetition did not move the needle. The wife attempted to recast the late-filed fraud allegations as a notice problem under Rule 245, but Rule 245 addresses trial settings, not pleading-amendment deadlines. Just as importantly, the opinion notes the absence of the usual preservation tools: no motion to strike, no developed claim of surprise or prejudice tied to Rule 63, and no indication that the amended pleading itself was meaningfully raised as the reason the case could not proceed. That failure mattered because appellate courts do not infer prejudice from timing alone.

The court also signaled a practical point family lawyers should not miss: when a continuance request is based on counsel withdrawal, the trial court is entitled to consider the entire course of the litigation. Here, that course included a long-pending divorce, an agreed withdrawal, a known trial setting, and a replacement appearance at the eleventh hour. On that record, the denial fell comfortably within the trial court’s discretion.

Holding

The court held that the trial court did not abuse its discretion in denying the continuance. Under Rule 253, the absence of counsel is not automatically good cause, and the wife had more than two months after withdrawal to secure replacement counsel. Given the age of the case and the lack of a developed record showing diligence or concrete prejudice, the appellate court would not find a clear and prejudicial error of law.

The court also rejected the wife’s notice argument concerning the husband’s amended counterpetition. Rule 245 did not support her position, and the record did not show preservation of any complaint based on surprise, prejudice, or improper amendment.

Finally, the court overruled additional complaints concerning property division and alleged attorney conflict issues because they were either inadequately briefed or not preserved in the trial court.

Practical Application

For family law litigators, Martin is less about abstract continuance doctrine and more about record discipline. When opposing counsel withdraws, or when your own client loses counsel close to trial, the appellate question will not be whether the situation felt unfair. It will be whether the record shows diligence, unavoidable prejudice, and a trial court decision outside the zone of reasonable discretion.

In final divorce trials, especially those involving business records, reimbursement claims, fraud on the community, tracing issues, or valuation disputes, lawyers often assume that a recent substitution of counsel itself justifies delay. Martin says otherwise. If a party had weeks—or, here, more than two months—to retain new counsel, the mere fact that replacement counsel appeared only on the eve of trial may be viewed as a party-side problem rather than a court-created one.

The case also has direct implications for pleading practice in family law. If an amended counterpetition adds a fraud claim, reimbursement theory, waste allegation, or separate-property attack shortly before final trial, do not rely on generalized complaints about notice. Instead, move to strike if warranted, object on surprise and prejudice grounds, request a ruling, and explain exactly what additional discovery, document collection, expert review, or witness preparation the amendment makes necessary. Without that record, the appellate court is unlikely to rescue the issue.

Strategically, Martin is also useful for the party resisting continuance. If you are opposing delay, emphasize the age of the case, prior reset history, agreed nature of the withdrawal, notice of the trial setting, the absence of diligence by the movant, and the lack of a specific showing of prejudice. Those facts align neatly with the Rule 253 framework and the abuse-of-discretion standard.

Checklists

Building a Continuance Record After Counsel Withdrawal

• Confirm the exact date the withdrawal order was signed.
• Document every effort made to retain replacement counsel after withdrawal.
• Prepare evidence, not argument alone, showing diligence in contacting attorneys and securing representation.
• Identify specific trial tasks new counsel cannot reasonably complete before trial.
• Tie the need for more time to concrete prejudice, such as unavailable discovery review, incomplete financial tracing, unprepared experts, or missing witness interviews.
• File the continuance motion promptly rather than waiting until the eve of trial.
• Verify that the motion complies with Texas continuance rules, including verification where required.
• Obtain an express ruling on the motion and ensure the hearing is on the record.

Preserving Surprise or Prejudice from Late Amended Pleadings

• Review whether the amendment injects a new substantive theory, such as fraud on the community, reimbursement, or separate-property divestiture.
• File a motion to strike if the amendment operates as a surprise under Rule 63.
• Object expressly on grounds of surprise and prejudice.
• Explain why the amendment changes trial preparation in a material way.
• Identify the additional evidence, witnesses, discovery, or expert analysis needed because of the amendment.
• Request a continuance that is explicitly tied to the amended pleading.
• Secure a ruling on both the objection and the continuance request.
• Make an offer of proof or record summary if the court limits development of the issue.

Opposing a Continuance in a Final Family Law Trial

• Build a timeline showing the age of the case and all prior settings or delays.
• Establish when the movant learned of counsel’s withdrawal and the final trial date.
• Highlight whether the withdrawal was agreed or foreseeable.
• Emphasize the time available to obtain replacement counsel.
• Argue the absence of verified facts showing diligence.
• Point out any failure to identify specific prejudice.
• Show prejudice to your client from further delay, including cost, stale evidence, or prolonged property uncertainty.
• Ask the court to state its ruling clearly on the record.

Protecting the Decree for Appeal

• Make sure the clerk’s record contains the withdrawal motion, withdrawal order, continuance motions, and any responses.
• Ensure the reporter’s record captures the trial court’s oral ruling and counsel’s arguments.
• If late pleadings are at issue, preserve objections and rulings with precision.
• Avoid relying on unsupported assertions in briefing; cite the exact record pages showing diligence and prejudice.
• Frame appellate arguments under the abuse-of-discretion standard rather than general fairness themes.

Citation

Martin v. Martin, No. 03-25-00394-CV, 2026 WL ___ (Tex. App.—Austin Aug. 27, 2026, no pet.) (mem. op.).

Full Opinion

Read the full opinion here

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