Cox v. Cox

• Decision Date: 28 August 2009
• Docket Number: No. 03-08-00650-CV.,03-08-00650-CV.
• Citation: 298 S.W.3d 726
• Parties: John COX, Appellant, v. Joy COX, Appellee.
• Court: Texas Court of Appeals

298 S.W.3d 726

John COX, Appellant, v. Joy COX, Appellee.

No. 03-08-00650-CV.

Court of Appeals of Texas, Austin.

August 28, 2009.

Rehearing Overruled November 12, 2009.

Elizabeth M. Bruman, The Law Office of Elizabeth Bruman, PC, Houston, TX, for Appellant.

James A. Vaught, McCullar Vaught, PC, Austin, TX, for Appellee.

Before Chief Justice JONES, Justices PURYEAR and HENSON.

OPINION

DIANE M. HENSON, Justice.

This is a restricted appeal from a default judgment granting a final divorce decree between appellant John Cox and appellee Joy Cox.¹ John argues that there is error on the face of the record in that (1) he was not served with the first amended petition; (2) there was no agreement to the terms of the final divorce decree; and (3) the evidence was insufficient to support the trial court's orders regarding the division of the marital estate, custody and control of the couple's minor children, the spousal-maintenance award, and the award of attorney's fees. Joy contends that John does not meet the requirements of a restricted appeal because he participated in the proceedings below. In the alternative, Joy argues that there is no error on the face of the record, except as to the award of spousal maintenance. Having determined that John meets the requirements of a restricted appeal because he did not participate in the proceedings below and that there is error on the face of the record in that John was not served with the first amended petition, we reverse the default judgment and remand the cause to the trial court for further proceedings consistent with this opinion.

BACKGROUND

John and Joy were married in 1983. They had five children, two of whom were minors at the time of the divorce. John and Joy separated in August 2007. On February 1, 2008, Joy filed a petition for divorce. A hearing on temporary orders was scheduled for April 21. John was personally served with citation and a copy of the petition on April 16.

John, Joy, and Joy's attorney signed a document entitled, "Negotiated Rule 11 Agreement for Temporary Orders" (the "written settlement agreement"), which was filed with the trial court on April 17, 2008. The document noted that:

The parties agree to enter the attached Temporary Orders, attached as exhibit A, with the Court as their agreement for Final Agreement in Divorce.... The parties agree that the Decree in and of itself is a [sic] binding and not subject to revocation and it is in the best interest of their children and temporarily divides their assets and liabilities.... The parties have agreed, as evidenced by their signatures below, that this agreement is contractual and binding on the parties and they have agreed, by their signatures below that this is binding and not subject to revocation. The Hearing scheduled for the week of April 21, 2008 shall be passed as this agreement is binding and made in good faith. The parties will work together to attempt to reach a Final Agreement and attempt to have a final agreement by May 15, 2008.

The trial court entered the "Temporary Orders" attached to the written settlement agreement that same day. The orders included provisions regarding custody and support of the children, division of the marital estate, and spousal maintenance.

On July 23, 2008, the day of the default-judgment hearing, Joy filed her first amended original petition. The amended petition contained a certification from Joy's attorney that a copy of the petition was served on John at "5420 Bee Caves Rd., Austin, Texas." See Tex.R. Civ. P. 20, 21a. Joy and her attorney appeared on July 23; John did not. Joy testified in support of her petition, and referred to documentary evidence previously filed with the trial court regarding the value of the couple's community assets and liabilities. The trial court entered the final decree of divorce that day. The final decree included provisions not contained in the written settlement agreement regarding the division of certain marital property not listed in the written settlement agreement, possession of the children during school holidays, possession of the children should the parents ever reside more than 100 miles apart, and appellate attorney's fees. In addition, the final decree contained a modified spousal-maintenance award.

On September 11, fifty days after the decree was signed, John filed a motion for new trial, arguing that he had not been given notice of the trial setting. On September 26, John filed a motion to extend the post-judgment deadlines because he was not timely given notice of the final judgment. See Tex.R. Civ. P. 306a(4). After a hearing on October 22, the trial court denied both of John's motions, finding:

To the extent Mr. Cox was entitled to Notice of the Trial setting, the Court finds that Mr. Cox received constructive notice of the trial setting in this matter and failed to appear at trial and wholly defaulted. To the extent Mr. Cox's appearance in the case via a Rule 11 Agreement and his agreement to the terms and substance of Temporary Orders does not constitute an answer because he failed to put any of the requests of Ms. Cox's Petition for Divorce in issue, Mr. Cox's failure to answer before judgment in this case was intentional, was the result of conscious indifference on his part and was NOT due to a mistake or an accident.

John then filed a notice of restricted appeal on November 17, 2008.

STANDARD OF REVIEW

To prevail on a restricted appeal, an appellant must demonstrate: (1) the notice of restricted appeal was filed within six months of the date of the judgment or order; (2) he was a party to the suit; (3) he did not participate in the hearing that resulted in the judgment complained of and did not timely file a post-judgment motion or request for findings of facts 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). The face of the record, for purposes of a restricted appeal, consists of all the papers that were before the trial court when it rendered its judgment. See Alexander, 134 S.W.3d at 848-49; General Elec. Co. v. Falcon Ridge Apartments, Joint Venture, 811 S.W.2d 942, 944 (Tex.1991). These requirements are jurisdictional and cut off a party's right to seek relief by way of a restricted appeal if they are not met. See Clopton v. Pak, 66 S.W.3d 513, 515 (Tex. App.-Fort Worth 2001, pet. denied). The parties agree that John meets the first two elements; thus we focus our analysis on whether John has established that (a) he did not participate in the hearing resulting in the judgment and (b) error is apparent on the face of the record.

DISCUSSION

Did John Participate in the Hearing Below?

To determine whether John meets the non-participation requirement of a restricted appeal, we ask whether he took part in the decision-making event that resulted in the adjudication of his rights. Texaco, Inc. v. Central Power & Light Co., 925 S.W.2d 586, 589 (Tex.1996); Parsons v. Dallas County, 182 S.W.3d 451, 453 (Tex.App.-Dallas 2006, no pet.). The nature and extent of participation necessary to preclude a restricted appeal in any particular case is a matter of degree because trial courts decide cases in a wide variety of procedural settings. Texaco, 925 S.W.2d at 589; Parsons, 182 S.W.3d at 453. It is the fact of non-participation, and not the reason for it, that determines a person's right to pursue a restricted appeal. Texaco, 925 S.W.2d at 589. Participation for purposes of a restricted appeal should be construed liberally in favor of a right to appeal. Stubbs v. Stubbs, 685 S.W.2d 643, 645 (Tex.1985).

John contends that there are substantive differences between the written settlement agreement and the final decree and that those differences make the hearing where the final decree was proven up and entered the decision-making event. Joy responds that the settlement conference, in which John participated, was the actual decision-making event because the settlement agreement "was the basis for and is very similar to" the final divorce decree. We agree with John.

The decision-making event is the proceeding in which the questions of law and fact are decided. Texaco, 925 S.W.2d at 589 (citing Lawyers Lloyds v. Webb, 137 Tex. 107, 152 S.W.2d 1096, 1097-98 (1941)). In a summary-judgment case, the decisions are made on the evidence presented to the trial court prior to the actual summary-judgment hearing; thus "a party who has taken part in all steps of a summary-judgment proceeding except the hearing on the motion has participated" in the decision-making event. Id.; Thacker v. Thacker, 496 S.W.2d 201, 204-05 (Tex.Civ.App.-Amarillo 1973, writ dism'd). But in a jury case, the decisions are made on the evidence presented to the jury, and thus a party must participate in the hearing before the jury in order to participate in the decision-making event. Texaco, 925 S.W.2d at 589. In a divorce case, it follows that the decision-making event is the event in which the final divorce decree is proven up. See Barnett v. Barnett, 750 S.W.2d 881, 883 (Tex.App.-Dallas 1988, no writ) (appellant participated in decision-making event when present at hearing where terms of decree were proven up, but not at hearing where decree was entered); cf. Texaco, 925 S.W.2d at 591 (citing Lawyers Lloyds, 152 S.W.2d at 1098) (appellant who does not participate in hearing of evidence does not participate in decision-making event).

In this case, the terms of the final divorce decree were proven up at the July 23, 2008, default-judgment hearing. At the default-judgment hearing, Joy was required to present evidence of the value of the marital assets and liabilities to be divided, that the proposed division was equitable and just, that the custody orders were in the best interests of the children, and that she was eligible for spousal maintenance. See Tex. Fam.Code Ann. § 6.701 (West 2006) ("In a suit for divorce, the...