in the Matter of the Marriage of Jesus and Maria Villa

REVERSE and REMANI); and Opinion Filed March 25, 2013.

In The (!uurt jif Aipiat Fiftt! Jutritt DI ixa Lit 3LI1tLU

No. 05-12-00233-CV

IN THE MATTER OF THE MARRIAGE OF JESUS AND MARIA VILLA

On Appeal from the 330th ,Iudicial District Court I)allas County, Texas Trial Court Cause No, DF-1O-12556-Y

MEMORANDUM OPINION Before Justices LangMiers, Murphy, and Fillmore Opinion by Justice Murphy

Jesus Villa brings this restricted appeal to set aside the trial court’s default final decree of divorce. Jesus contends there is error on the face of the record because he did not receive the required notice of the default judgment hearing, the trial court granted more relief than his wife, Maria Villa, requested in her petition, and the evidence from the default judgment hearing is insufficient to support the default divorce decree. We reverse and remand.

Background

Jesus and Maria filed competing petitions for divorce in July 2010. The contested issues involved division of the community property and debts, conservatorship of the couple’s two children, and possession and access to the children. Maria also alleged cruel treatment as an additional ground for the divorce.

In February () ii the trial court signed an order permitting Jesuss counsel to withdraw. ,

The order included a linding that Jesus’s last known mailing address was 132 W. Avenue F, Garland, Texas 75040, After that time, it appears Jesus represented himself pro se.

Marias attorney sent Jesus a letter dated July 1, 2011 (but filed stamped July 12, 2011), informing him that a pretrial hearing was scheduled for August 12, 201!. The letter rellected it was filed with the trial Court and sent to Jesus’s address on W. Avenue F in Garland by certified mail, return receipt requested. Although the letter notified Jesus of an August 12 pretrial hearing, no hearing was scheduled for the case on that date. Rather, the trial court’s docket sheet revealed the hearing occurred on August 22. Jesus did not appear at that hearing, and the trial court reset the hearing for October 3, 2011. The handwritten docket entry for August 22 stated: “Reset PIT & mother’s attorney to send appropriate notice re: P/T & default if [Jesus I fails to appear.”

Jesus also did not appear at the October 3 hearing. The trial court’s docket sheet for that

date specifically noted that Jesus was “notified failure to appear could [result ml default” and that Maria “will come in [forl a default” hearing on October 13. 2011.

At the October 13 hearing, Maria’s counsel recounted for the court that Maria “appeared at the pretrial Ion October 3rd] and Jesus Villa failed to appear so thereafter the Court said that I need[edj to present a decree by default.” Maria’s counsel then proceeded to present proveup testimony through an interpreter in support of the final decree of divorce, which the trial court granted at the conclusion of the hearing. The docket sheet for that date indicated “[nJo appearances for trial” and that the divorce was “[f]inalized.” The final decree of divorce was

-2-signed on October 13, 201 1. The record contains no indication the final decree was sent to Jesus. Jesus did not file any post-judgment motions but filed a notice of restricted appeal within six months of the default divorce decree.

Discussion

To prevail on his restricted appeal, Jesus must establish that (I) he filed notice of the restricted appeal within six months after the judgment was signed; (2) he was a party to the underlying lawsuit; (3) he (lid not participate in the hearing that resulted in the complained-of judgment and did not timely file any post-judgment motions or requests for findings of fact and conclusions of law: and (4) error is apparent on the face of the record. See TEx. R. APP. P. 26.1(c). 30; Alexander v. Lvnda’s Boutique, 134 S.W.3d 845, 848 (Tex. 2004). Because Jesus did not appear in the hearing that resulted in the final divorce decree and he timely filed his restricted appeal, he has met the first three requirements of a restricted appeal. TEx. R. APP. P. 26. 1(c), 30. Thus, the only issue before us is whether error is apparent on the face of the record. In a restricted appeal, the “face of the record” means the papers on file with the trial court when it rendered judgment. See Campsev m’. Campsev, 111 S.W.3d 767. 771 (Tex. App.—Fort Worth 2003, no pet.) (citing Gen. Flee. Co. v, Falcon Ridge Apts.. 811 S.W.2d 942. 944 (Tex. 1991)): see also Gonzalez v. Gonzalez, 331 S.W.3d 864, 866 (Tex. App.—-Dallas 2011, no pet.).

Jesus asserts there are three reversible errors underlying the default divorce decree that are apparent on the face of the record, the first of which is that he did not have proper notice of the hearing at which the trial court signed the final decree of divorce (his second issue). A party who appears in the case is entitled to notice of a trial setting or hearing on a motion for default judgment as a matter of due process. LBL Oil Co. v. Int’l Power Servs.. Inc., 777 S.W.2d 390, 391 (Tex. 1989) (per curiam); Bradford v. Bradford, 971 S.W,2d 595, 597 (Tex. App.—Dallas 1998, no pet.) (default judgment hearing constitutes a “trial setting” dispositive of the case). Texas Rule of Civil Procedure 245 requires that the notice given be no less than forty-five days of the first trial setting. See TEx. R. Civ, P. 245. Proper notice under rule 245 is mandatory. See Ramsey v. Davis. 261 S.W.3d 811, 815 (Tex. App—Dallas 2008. pet, deniedL The failure to provide a party with the required notice deprives the party of his constitutional right to be present at the hearing and voice his objections in an appropriate manner, and results in a violation of fundamental due process. campvey, 111 S.W.3d at 771; Blanco V. Bolanos, 20 S.W.3d 809. 8 11 (Tex. App.—El Paso 2000, no pet.); Murphree v. Ziegelmuir, 937 S.W.2d 493, 495 (Tex. App.— Houston I 1st Dist.j 1995. no writ). If the party does not have notice of the hearing during which the trial court granted a default judgment as required by rule 245, the default judgment should be set aside because it is ineffectual. Bianco, 20 S.W,3d at 81 1—12; Plati v. P/au, 991 S.W.2d 481, 484 (Tex. App.—Tyler 1999, no Pet.).

It is generally presumed that a trial court hears a ease only after notice has been given to the parties, so the obligation to affirmatively show the lack of notice or non-compliance with rule 245 lies with the complainant. Campsev, 111 S.W.3d at 771. If, however, the record affirmatively demonstrates less than forty-five days’ notice, the presumption of proper notice will no longer be taken as true. Blanco, 20 S.W.3d at 811; Osborn v. Osborn, 961 S.W.2d 408, 411 (Tex. App.—Houston [1st Dist.j 1997, writ denied).

The record shows that after Jesus did not appear at the August 22 pretrial hearing, the trial court scheduled for October 3 a “P/T [hearingi & default if [Jesus] fails to appear.” And after Jesus did not appear at the October 3 hearing, the trial court informed Maria’s counsel that he “need[ed] to present a decree by default.” The default hearing was then scheduled for October 13. The record does not show the trial court sent notice to Jesus that a default judgment

-4-hearing on the merits of the divorce would be heard on October 13. But even if notice had been sent, the notice provided would be just ten days, not forty-live days as required under rule 245.

The record also shows that Marias counsel represeiitcd to the court at the start of the October 13 hearing that Jesus “was served and ordered to appear at a pretrial on October 3rd.” The October 3 hearing was set after Jesus failed to appear at the August 22 hearing. Assuming

Jesus was not ilied (I) of the October 3 pretrial hearing and (2) that his failure to attend that hearing could result in his divorce immediately being set for default (as the docket entry noted). Jesus would have received just forty-two days’ notice if the notice was sent Ofl August 22 and less than forty-days’ notice if it was sent after that date.

The record affirmatively demonstrates that tinder these circumstances, Jesus did not

receive forty-five days’ notice of the hearing that disposed of the contested issues in the divorce as required under rule 245. Thus, the default divorce decree was granted in violation of Jesus’s due process rights. Ivlurphree, 937 S.W.2d at 495. Because error is apparent on the face of the record based on the failure to give proper notice, we need not consider Jesus’s remaining issues. See TEx. R. App. P. 47. 1. We sustain Jesus’s second issue. We also confirm we have jurisdiction

over this appeal as asserted by Jesus in his first issue. Accordingly, we reverse the default final decree of divorce and remand this case a new trial.

(H / Ai

1) /1J/( MARY MURPHY t JUSTICE U

I 20233F.P05

Qnurt nf ‘inah fiftI! Ohtrirt nf Jixaa at Jat1a JUDGMENT

IN THE MATTER OF THE MARRIAGE On Appeal from the 330th Judicial District OF JESUS AND MARIA VILLA, court. Dallas County, Texas Trial Court Cause No, DF-l0-12556-Y. No. 05-i 2-00233-CV Opinion delivered by Justice Murphy. Justices Lang-Miers and Fillmore participating.

In accordance with this Court’s opinion of this date, the judgment of the trial court is REVERSED and this cause is REMANDED to the trial court for a new trial. It is ORDERED that appellant Jesus Villa recover his costs of this appeal from appellee Maria Villa.

th 25 Judgment entered this day of March. 2013.

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