Opinion
NO. 12-11-00254-CV
08-30-2012
IN THE INTEREST OF T.K.M., A CHILD
APPEAL FROM THE
COUNTY COURT AT LAW
ANDERSON COUNTY, TEXAS
MEMORANDUM OPINION
Appellant Cathy Mrazek appeals the trial court's order in a suit to modify the parent-child relationship. On appeal, Cathy presents three issues. We reverse and remand.
BACKGROUND
Cathy is the parent of one child, T.K.M., born December 22, 2006. Cathy and Samantha Mrazek were joint managing conservators of the child. On November 17, 2010, Cathy signed an affidavit designating Samantha as the sole managing conservator of the child, including the sole right of possession of the child and the sole right to designate the residence of the child. On November 22, 2010, Cathy and Samantha filed a petition to modify the parent-child relationship, requesting that the final order of adoption rendered in 2007 is modified to reflect that Samantha be appointed as the sole managing conservator of the child.
In her affidavit, Cathy also designated Samantha as the sole managing conservator of R.H.K., Cathy's younger adopted child. However, R.H.K.'s conservatorship is not part of this appeal.
On February 25, 2011, the trial court signed an order removing Samantha and Cathy as managing conservators of T.K.M. and appointing Samantha as the child's sole managing conservator. Additionally, the trial court granted a permanent injunction against Cathy, which prohibited her from communicating with Samantha, coming within five hundred feet of Samantha's residence or place of employment, interfering with Samantha's possession of the child, or coming within five hundred feet of, entering, or remaining on the premises of the child's day care facility. Further, the order stated that Cathy made a general appearance and "has agreed to the entry of this order as evidenced by her signed affidavit filed in this matter." On August 22, 2011, Cathy timely filed a restricted appeal.
RESTRICTED APPEAL
We must first determine whether Cathy is entitled to a restricted appeal. To prevail on her restricted appeal, Cathy must establish that (1) she filed notice of the restricted appeal within six months after the judgment was signed, (2) she was a party to the underlying lawsuit, (3) she did not participate in the hearing that resulted in the judgment complained of and did not timely file any postjudgment 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. 30; Alexander v. Lynda's Boutique, 134 S.W.3d 845, 848 (Tex. 2004). Review by restricted appeal affords the appellant a review of the entire case, just as in an ordinary appeal, with the only restriction being that any error must appear on the face of the record. Conseco Fin. Servicing Corp. v. Klein Indep. Sch. Dist., 78 S.W.3d 666, 670 (Tex. App.—Houston [14th Dist.] 2002, no pet.) (citing Norman Communications v. Texas Eastman Co., 955 S.W.2d 269, 270 (Tex. 1997)); Lewis v. Ramirez, 49 S.W.3d 561, 564 (Tex. App.—Corpus Christi 2001, no pet.). Silence of the record is insufficient to show error on the face of the record. See Ginn v. Forrester, 282 S.W.3d 430, 433 (Tex. 2009); Alexander, 134 S.W.3d at 849-50. The face of the record for purposes of a restricted appeal consists of all the papers on file before the judgment as well as the reporter's record. Conseco Fin. Servicing Corp., 78 S.W.3d at 670; Lewis, 49 S.W.3d at 564.
Here, the record demonstrates that Cathy perfected this appeal within the jurisdictional time limits, was a party to the underlying suit, and did not participate in the actual hearing of the case. Having determined that Cathy met three of the four jurisdictional elements of a restricted appeal, we must determine if there is error on the face of the record.
NOTICE OF HEARING
In her first issue, Cathy argues that the trial court erred by failing to provide her notice of the trial setting in the suit to modify the parent-child relationship. Applicable Law
Texas courts have long recognized that in proceedings where child custody is to be adjudicated and parental rights affected, parents must be given notice of the proceedings and must be allowed a full hearing to protect their rights. In re T.L.V., 148 S.W.3d 437, 439 (Tex. App.—El Paso 2004, no pet.); Matter of Honsaker, 539 S.W.2d 198, 200 (Tex. Civ. App.-Dallas 1976, writ ref'd n.r.e.). Once a party has made an appearance in a cause, she is entitled to the notice of the trial setting as a matter of due process under the Fourteenth Amendment. See In re $475,001.16, 96 S.W.3d 625, 627 (Tex. App.—Houston [1st Dist.] 2002, no pet.) (citing Peralta v. Heights Med. Ctr., Inc., 485 U.S. 80, 85-86, 108 S. Ct. 896, 899-900, 99 L. Ed. 2d 75 (1988)); In re Brilliant, 86 S.W.3d 680, 693 (Tex. App.—El Paso 2002, no pet.); Platt v. Platt, 991 S.W.2d 481, 483 (Tex. App.—Tyler 1999, no writ). Thus, a petitioner is also entitled to notice of a trial setting as a matter of law. In re P.C., 339 S.W.3d 322, 324 (Tex. App.—El Paso 2011, no pet.). "Failure to give notice violates 'the most rudimentary demands of due process of law.'" Peralta, 485 U.S. at 84, 108 S. Ct. at 899 (quoting Armstrong v. Manzo, 380 U.S. 545, 550, 85 S. Ct. 1187, 1190, 14 L.Ed.2d 62 (1965)). Proceeding to trial without notice to a party is reversible error. Barnes v. Barnes, 775 S.W.2d 430, 431 (Tex. App.—Houston [1st Dist.] 1989, no pet.). Analysis
In this case, the order stated that Cathy made a general appearance. Because Cathy made a general appearance, she was entitled to notice of the trial setting as a matter of law. See In re P.C., 339 S.W.3d at 324. The order originally stated that Cathy "was duly notified of trial but failed to appear and defaulted." However, that language was marked out and a handwritten notation added that Cathy "has agreed to the entry of this order as evidenced by her signed affidavit filed in this matter." By its own substituted language in the order, the trial court showed that Cathy did not receive proper notice of the trial setting, but instead, "agreed" to the order through her affidavit. See Ginn, 282 S.W.3d at 433. Because Cathy did not receive proper notice of the trial setting, the trial court erred by proceeding to trial, and this error is apparent on the face of the record. See Barnes, 775 S.W.2d at 431; Alexander, 134 S.W.3d at 849. Accordingly, we sustain Cathy's first issue.
PERMANENT INJUNCTION
In her second issue, Cathy contends that the trial court erred by granting relief to Samantha beyond that prayed for in the petition to modify the parent-child relationship. Cathy and Samantha's petition requested that Samantha be appointed as the sole managing conservator of the child. The prayer also requested that the trial court "enter its orders in accordance with the allegations contained in this petition." Cathy's affidavit evidenced her agreement to the order designating Samantha as the sole managing conservator of the child, but did not mention a permanent injunction. However, the order appointed Samantha as sole managing conservator of T.K.M. and granted a permanent injunction against Cathy.
A judgment must be supported by the pleadings and, if not so supported, it is erroneous. Cunningham v. Parkdale Bank, 660 S.W.2d 810, 813 (Tex. 1983); TEX. R. CIV. P. 301. A party may not be granted relief in the absence of pleadings to support that relief, absent trial by consent. Id.; Westchester Fire Ins. Co. v. Nuckols, 666 S.W.2d 372, 375 (Tex. App.—Eastland 1984, writ ref'd n.r.e.). In this case, the petition did not request a permanent injunction against Cathy, nor did Cathy agree to the entry of a permanent injunction in her affidavit. Moreover, because Cathy did not appear at trial or receive notice of the trial setting, the issue of the permanent injunction could not be tried by consent. See Cunningham, 660 S.W.2d at 813. Therefore, because the order is not supported by the petition, the trial court erred in granting the permanent injunction, and its error is apparent on the face of the record. See id.; Alexander, 134 S.W.3d at 849. Accordingly, we sustain Cathy's second issue.
REPORTER'S RECORD
In her third issue, Cathy argues that the lack of a reporter's record of the hearing prevents determining whether the order modifying the parent-child relationship was in the best interest of the child. In this case, the order states that "[t]he record of testimony was duly reported" by the court reporter. On appeal, Cathy's counsel requested that the court reporter prepare, file, and certify the reporter's record of the hearing on the order. However, we take judicial notice that the court reporter informed this court that there is no record to be transcribed. See Ex parte Joyner, 367 S.W.3d 737, 738 (Tex. App.—Houston [14th Dist.] 2012, no pet. h.) (noting that appellate court may take judicial notice of its own records).
Section 105.003 of the Texas Family Code requires a record in a suit affecting the parent-child relationship to be made unless waived by the parties with the consent of the court. See TEX. FAM. CODE ANN. § 105.003(c) (West 2008); Stubbs v. Stubbs, 685 S.W.2d 643, 645 (Tex. 1985). This provision places an affirmative duty on the trial court to make a record of the proceedings, and failure to do so constitutes error on the face of the record requiring reversal. Stubbs, 685 S.W.2d at 646; In re D.J.M., 114 S.W.3d 637, 639 (Tex. App.—Fort Worth 2003, pet. denied); In re Vega, 10 S.W.3d 720, 722 (Tex. App.—Amarillo 1999, no pet.) (citing Rogers v. Rogers, 561 S.W.2d 172, 173 (Tex. 1978)). A party, however, may waive the making of a record by express written agreement or by failing to object to the lack of a record during the hearing. In re D.J.M., 114 S.W.3d at 639.
Here, according to the court reporter, a record of the hearing was not made. Further, Cathy did not expressly waive the record nor was she present at the hearing to object to the lack of a record. Because a record of the hearing was not waived, the trial court erred by failing to make a record of the proceedings, and this error is apparent on the face of the record. See Stubbs, 685 S.W.2d at 646; In re D.J.M., 114 S.W.3d at 639; In re Vega, 10 S.W.3d at 722. Accordingly, we sustain Cathy's third issue.
DISPOSITION
Having sustained Cathy's three issues, we reverse the order in the suit to modify parent-child relationship signed on February 25, 2011, and remand the case to the trial court for further proceedings.
JAMES T. WORTHEN
Chief Justice
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.
(PUBLISH)
NO. 12-11-00254-CV
IN THE INTEREST OF T.K.M., A CHILD
Appeal from the County Court at Law
of Anderson County, Texas. (Tr.Ct.No. CCL-10-12999)
THIS CAUSE came to be heard on the appellate record and the briefs filed herein, and the same being considered, because it is the opinion of this court that there was error in the judgment of the court below, it is ORDERED, ADJUDGED and DECREED by this court that the trial court's order in the suit to modify parent-child relationship signed on February 25, 2011, be reversed and the cause remanded to the trial court for further proceedings consistent with this opinion, and that all costs of this appeal are hereby adjudged against the Appellee, SAMANTHA MRAZEK, and that this decision be certified to the court below for observance.
James T. Worthen, Chief Justice.
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.