Caroline Beard v. Miguel Uriostegui , 2012 Tex. App. LEXIS 8553 ( 2012 )

Opinion issued October 11, 2012
In The
Court of Appeals
For The
First District of Texas
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NO. 01-11-00798-CV
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CAROLINE BEARD, Appellant
V.
MIGUEL URIOSTEGUI, Appellee
On Appeal from the 311th District Court
Harris County, Texas
Trial Court Case No. 2005-78194
OPINION
Caroline Beard challenges the trial court’s default judgment on restricted
appeal. The trial court granted Miguel Uriostegui’s petition to modify custody and
child support with regard to one of Beard’s and Uriostegui’s children. Beard
argues that the letter she sent to the trial court in response to service of Uriostegui’s
petition should be considered an answer, entitling her to notice of the trial.
Because she was not given notice, she complains that the trial court erred in
granting a default judgment. We agree. Accordingly, we reverse the trial court’s
judgment and remand for further proceedings.
BACKGROUND
Beard and Uriostegui were married for ten years and had two children, a
daughter and a son. Beard filed for divorce in 2005, and the parties’ divorce was
finalized in April 2006. The Final Decree of Divorce appointed Beard and
Uriostegui as joint managing conservators of the children, and Beard was given the
exclusive right to establish the residence for both children.
A. Uriostegui’s Petition to Modify Custody and Support
In September 2010, Uriostegui filed an Original Petition to Modify with
respect to his son, G.U. Uriostegui’s petition alleged that Beard had voluntarily
allowed G.U. to live with Uriostegui full-time for more than six months. He
requested that he be granted the exclusive right to designate G.U.’s primary
residence. He also requested that Beard be ordered to pay support for G.U.,
beginning at the date of service of the petition to modify, and that Beard be ordered
to pay Uriostegui’s attorney’s fees.
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Beard was served a copy of Uriostegui’s petition on September 23rd, 2010.
The return of service was filed with the court on September 24th, 2010.
B. Beard’s Response
Beard sent an October 5, 2010 letter to the trial court via certified mail. In
that letter Beard identified the case number, the style of the case, the parties, and
stated the following:
I Caroline Beard, former name of Caroline Uriostegui, wish not
to contest this suit against me. I do this not because I don’t wish to
have custody of my son like I have had for the past 4 ½ years, but
because the lawyer and court fees would outweigh the child support
gained in the issue. Including the lost wages from the court and
lawyer visits it would be contradictory to me and my finances which
is what this case is all about.
I would like the court to be aware that there is also another
child that is a part of this divorce: [G.U.2], my 6 yr old daughter.
Miguel was not involved in my children’s lives and does not see his
daughter [G.U.2.]. He only started seeing [G.U.2] last year. She just
started kindergarten and goes to after school care for $200 a month.
My son [G.U.] is also on Vyvanse an ADHD medication that he takes
daily for $186 a month. I know his father Miguel won’t buy him his
medications that he needs because he thinks that the doctor that
diagnosed him does not know what he is doing and [G.U.] does not
need it. My children don’t have health insurance, their father Miguel
is supposed to provide that for them as stated in the divorce decree but
does not. The family insurance through my job is very costly, and
unaffordable for me at this moment, therefore [G.U.] expects me to
get them for him every month.
I would also like the court to be aware of the fact that there was
a restraining order against Miguel for the protection of the children
[G.U.], and [G.U.2] and myself that has probably expired now but that
I got for our own protection against this temperamental, abusive and
vindictive man.
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Miguel Uriostegui owes me back child support since he has not
consecutively paid the child support all these years and every time he
leaves a job and finds another it takes a long time before he is found
and I start getting it again. I will bring all the according records to
support all the above facts with me to court when this case is settled in
court.
I would like to let you know that I also have my two other
children living with me [C.G.] and [M.G.].
I wish and pray the court asses[s] all of the above facts and
judges accordingly.
C. The Hearing
Uriostegui’s petition was heard on March 23, 3011, before a visiting judge.
Beard was not given notice of the trial. The visiting judge made note on the docket
sheet that there was a letter on file that Beard did “wish not to contest this suit.”
Uriostegui testified that G.U. had been living with him for more than six
months, was thriving, and that modifying the original divorce decree to permit him
to establish G.U.’s residence was in G.U.’s best interest. Uriostegui also testified
that although he does not have any information about Beard’s income, based on his
attorneys’ and his Internet research about potential salaries for her job at an
ophthalmology office, he is proposing that Beard pay $730 per month in child
support for G.U. He requested that payment be ordered retroactively to the date of
service of the petition to modify.
The visiting judge stopped the hearing at this point, telling Uriostegui’s
counsel that “[e]verything else is good up until the child support,” but expressing
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the view that “there is no evidence of that.” He stated he would not approve the
child support request, but that Uriostegui’s counsel could take it up with the
presiding judge. No exhibits were admitted and no other testimony or evidence
appears on the record.
D. The Judgment
On the same day, the presiding judge signed an Agreed Order in Suit to
Modify the Parent-Child Relationship. The order states that “Respondent, Caroline
Uriostegui, although duty noted and cited to appear wholly failed to file an answer
or otherwise enter an appearance Accordingly, Respondent has wholly made
default.” Among other things, the order awarded custody of G.U. to Uriostegui,
established Beard’s visitation schedule, directed Beard to pay $730 per month for
G.U.’s support, and awarded to Uriostegui from Beard $3,650 in retroactive child
support.
THIS APPEAL
Beard brought this restricted appeal, arguing in one issue that “[t]he trial
court should have treated the letter from Appellant as an answer and not allowed
the hearing to proceed without proof of notice of hearing being provided to
Appellant.”1
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Appellee Uriostegui did not file a brief here.
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A. Restricted Appeal
In restricted appeal cases, the Appellant must establish that he or she
(1) filed notice of the restricted appeal within six months after the judgment was
signed; (2) was a party to the underlying lawsuit; (3) did not participate in the
hearing that resulted in the judgment complained of and did not file any post-
judgment motions or requests for findings of fact and conclusions of law; and (4)
that there is error apparent on the face of the record. Transamerica Occidental Life
Ins. Co. v. Rapid Settlements, Ltd., 284 S.W.3d 385, 390 (Tex. App.—Houston [1st
Dist.] 2008, no pet.); TEX. R. APP. P. 30. Beard filed notice of the restricted appeal
within six months after the judgment was signed and is a party to the underlying
lawsuit. She did not file any post-judgment motions or requests for findings of fact
and conclusions of law. The sole issue, therefore, is whether or not error is
apparent on the face of the record.
B. Default Judgment
Generally, a plaintiff may take a default judgment against a defendant who
fails to file an answer. See TEX. R. CIV. P. 239. A defendant who fails to answer or
appear is not entitled to notice of a hearing on the default judgment. Wilson v.
Wilson, 132 S.W.3d 533, 536 (Tex. App.—Houston [1st Dist.] 2004, pet. denied).
A defendant who makes an appearance in the case, however, is entitled under the
due process clause to notice of a trial on the merits or a hearing on a motion for
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default judgment. LBL Oil Co. v. Int’l Power Servs., Inc., 777 S.W.2d 390, 390–
91 (Tex. 1989); In re Marriage of Runberg, 159 S.W.3d 194, 197 (Tex. App.—
Amarillo 2005, no pet.).
Beard argues that her letter to the trial court should have been construed as
an answer, rendering the granting of a default judgment error. She points out that
her letter “identified the parties and the case number” and that while Beard stated
in the letter that she “wish[es] not to contest this suit against me,” she gave a clear
indication that she intended to be present at any hearing by further stating that she
“will bring all the according records to support all of the above facts with me to
court when the case is settled in court.” She notes that the trial court was clearly
aware of the letter, as it made reference to it on the docket sheet. According to
Beard, her letter—taken as a whole—“was an answer, not a waiver” and the trial
court’s failure to treat it as such violated the rule that pleadings be construed
liberally absent special exceptions. We agree.
In Smith v. Lippmann, the supreme court held that “a defendant, who timely
files a pro se answer by a signed letter that identifies the parties, the case, and the
defendant’s current address, has sufficiently appeared by answer and deserves
notice of any subsequent proceedings in the case.” 826 S.W.2d 137, 138 (Tex.
1992). This Court has clarified that if the Lippmann criteria are otherwise met, the
defendant’s current address need not be set forth in the body of the defendant’s
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letter; it is enough if, as in this case, “the envelope [bearing a return address]
accompanies the letter and is filed by the clerk.” Harris v. Harris, 850 S.W.2d
241, 242–43 (Tex. App.—Houston [1st Dist.] 1993, no pet.).
Beard sent a signed letter to the trial court identifying the parties, the case
number, the style of the case, and the issues in the case. Her letter did not contain
her current address in the body of the letter, but the envelope containing her letter
had a return address and was filed by the court. A fair reading of her letter reflects
that, for financial reasons, she did not intend to resist Uiostegui’s request for
custody of G.U., but that, at a minimum, she planned to present evidence related to
Uriostegui’s alleged failure to meet his financial obligations to her. This “letter
was a sufficient pro se answer pursuant to prevailing case law and common sense.”
Id. at 243. The trial court’s treatment of the letter as her acquiescence in all the
relief sought by Uriostegui was error.
CONCLUSION
We reverse the trial court’s default judgment and remand the case to the trial
court for a new trial.
Sherry Radack
Chief Justice
Panel consists of Chief Justice Radack and Justices Bland and Huddle.
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