Adriana Carrasco Zubiate v. Joel Zubiate ( 2017 )

Opinion filed May 4, 2017
In The
Eleventh Court of Appeals
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No. 11-16-00102-CV
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ADRIANA CARRASCO ZUBIATE, Appellant
V.
JOEL ZUBIATE, Appellee
On Appeal from the 446th District Court
Ector County, Texas
Trial Court Cause No. E-16-01-0027-FM
MEMORANDUM OPINION
J.Z.’s father and mother were involved in a divorce proceeding. While the
divorce proceeding was pending, the father filed a separate suit in which he sought
a protective order to protect J.Z. from J.Z.’s mother; the father alleged that the
mother had been hitting J.Z. in the face. After a hearing, the trial court granted the
father’s petition. On appeal, the mother claims that she had no notice of the hearing
and that, therefore, the trial court’s order should be set aside. Because there has been
no showing that the mother received notice of the final hearing, we set aside the trial
court’s order and remand the cause to the trial court.
While a divorce case was pending between the mother and the father, the
father sought and obtained a protective order against the mother. In the order, the
trial court limited the mother’s access to one of the children of the parties, J.Z. When
the father filed the application for the protective order, he sought and obtained a
temporary ex parte order by which the trial court restricted the mother’s contact with
J.Z. The trial court set a hearing on the application for January 22, 2016, at 8:45 a.m.
On January 15, 2016, a process server served the mother with the application and
the order setting the case for a final hearing.
On January 20, 2016, the father filed a motion for continuance in this case.
The father sent what he called a “Courtesy Copy” of the motion for continuance to
the mother’s attorney in the divorce case. The mother claimed that her divorce
lawyer did not represent her in this case. The notation “Courtesy Copy” on the
certificate of service contained in the motion for continuance would be congruent
with the mother’s claims, in her motion for new trial and here, that her divorce
lawyer did not represent her in the protective order action and that she had no notice
of the date of the final hearing. The trial court granted the motion for continuance,
extended the ex parte order, and reset the final hearing for January 29 at 8:45 a.m.
In any event, although the certificate of service contained a reference to the motion
for continuance, it did not contain a certification of service of the order by which the
trial court reset the hearing.
Although in its final protective order the trial court found that the mother,
“although duly and properly cited, did not appear and wholly made default,” there is
nothing in the record to show that she received any notice that the trial court had
reset the hearing to January 29. Because this is a direct appeal, as opposed to an
original proceeding, the trial court’s recitation does not create a presumption that
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issuance, service, and return of citation are valid. In re Sloan, 214 S.W.3d 217, 221
(Tex. App.—Eastland 2007, no pet.).
Section 82.043(a) of the Texas Family Code provides that “[e]ach respondent
to an application for a protective order is entitled to service of notice of an
application for a protective order.” TEX. FAM. CODE ANN. § 82.043(a) (West 2014).
Section 82.041(a)(6) of the Family Code provides that the notice must show the date,
time, and place of the hearing. Id. § 82.041(a)(6). The notice of the application
“must be served in the same manner as citation under the Texas Rules of Civil
Procedure, except that service by publication is not authorized.” Id. § 82.043(c).
The notice provisions under Section 82 do not apply if the suit is a part of a suit for
dissolution of marriage. Id. § 82.043(e). Notice to be given in that event is the same
as any other notice for motions generally in marriage dissolution cases. Id. The
application for protective order in this case is independent of the parties’ pending
divorce.
Under the language of Section 84.004(a) of the Family Code, if a respondent
to an application for protective order is served with notice of the application within
forty-eight hours of the scheduled hearing, she is entitled, upon request, to have the
hearing rescheduled for a date not later than fourteen days after the date set for the
hearing. Id. § 84.004(a). Subsection (b) of that section also provides that “[t]he
respondent is not entitled to additional service for a hearing rescheduled under this
section.” Id. § 84.004(b). That language seems to say by implication that the
converse is true: a party is entitled to additional service for hearings rescheduled in
another manner, such as at the request of the petitioner.
Rule 21 of the Texas Rules of Civil Procedure provides:
An application to the court for an order and notice of any hearing
thereon, not presented during a hearing or trial, must be served upon all
other parties not less than three days before the time specified for the
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hearing, unless otherwise provided by these rules or shortened by the
court.
TEX. R. CIV. P. 21(b). The Rules of Civil Procedure also provide guidelines for how
those notices are to be given when they are required. See TEX. R. CIV. P. 21, 21a.
This record shows the father gave no notice of any kind to the mother, whether
under the Texas Rules of Civil Procedure or the Texas Family Code, concerning the
resetting of the January 22 hearing. The burden was upon the father to make that
showing, and he failed to meet that burden. See Lease Fin. Grp., LLC v. Childers,
310 S.W.3d 120, 126 (Tex. App.—Fort Worth 2010, no pet.). Due process of law
requires notice in accordance with law. See In re Marriage of Little, No. 10-08-
00078-CV, 2008 WL 3115357, at *1 (Tex. App.—Waco, Aug. 6, 2008, no pet.)
(mem. op., not designated for publication) (due process requires compliance with
notice provisions). Here, when the trial court conducted the hearing and entered the
protective order in the absence of any notice as to the January 29 hearing, the
mother’s due process rights were violated. We sustain the mother’s sole issue on
appeal.
We set aside the order of the trial court and remand this cause to that court for
further proceedings consistent with this opinion.
JIM R. WRIGHT
CHIEF JUSTICE
May 4, 2017
Panel consists of: Wright, C.J.,
Willson, J., and Bailey, J.
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