William Duncan Sartain II v. State ( 2010 )

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-09-00455-CV
Sloan Baker, Appellant
v.
Christine Baker, Appellee
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 261ST JUDICIAL DISTRICT
NO. D-1-FM-08-003561, HONORABLE SUZANNE COVINGTON, JUDGE PRESIDING
MEMORANDUM OPINION
Appellant Sloan Baker brings a restricted appeal challenging the portion of a default
divorce decree as it pertains to the parent-child relationship of the parties. See Tex. R. App. P. 30.
Appellant has not challenged those portions of the decree that determine he is the father of the
children the subject of the suit, the dissolution of the marriage, and the division of the marital estate
of the parties. Specifically, he contends that the district court erred by failing to make a record of
the hearing in which the court made determinations concerning the parent-child relationship. See
Tex. Fam. Code Ann. § 105.003(c) (West 2008). Appellee Christine Baker did not submit a brief
in response.
The family code requires that a record of hearings be made in all suits involving the
parent-child relationship unless waived by the parties with the consent of the court. Id. The family
code’s requirement of a record in a suit affecting the parent-child relationship is mandatory and is
not subject to harmless error review. See, e.g., Stubbs v. Stubbs, 685 S.W.2d 643, 645 (Tex. 1985);
Rogers v. Rogers, 561 S.W.2d 172, 173-74 (Tex. 1978); In re Vega, 10 S.W.3d 720, 722-23 (Tex.
App.—Amarillo 1999, no pet.); G.S.K. v. T.K.N., 940 S.W.2d 797, 799 (Tex. App.—El Paso 1997,
no writ); Pringadi v. Heffern, No. 03-05-00501-CV, 2005 Tex. App. LEXIS 9253, at *2-3 (Tex.
App.—2005 Austin, no pet.) (mem. op.).
Accordingly, because appellant does not contest that he is the biological father of the
children, the dissolution of the marriage, and the division of the marital estate of the parties, we
affirm those portions of the divorce decree. However, because appellant (1) brought his appeal
within six months of the judgment, (2) was a party to the underlying suit, (3) did not participate in
the hearing on the divorce decree, and (4) has demonstrated reversible error in the trial court’s failure
to record the hearing, we reverse the portion of the district court’s decree on the parent-child issues
of conservatorship, possession, and support, and remand for a new trial consistent with this opinion.
See Stubbs, 685 S.W.2d at 645-46.
__________________________________________
Jan P. Patterson, Justice
Before Justices Patterson, Puryear and Henson
Affirmed in Part; Reversed and Remanded in Part
Filed: May 18, 2010
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