in the Matter of the Marriage of Jesus and Maria Villa ( 2013 )


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  •  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.
    N1.\RY ML’RPIIY
    .11 SI l( I