Opinion
No. 10-07-00037-CV
Opinion delivered and filed August 27, 2008.
Appealed from the 85th District Court Brazos County, Texas, Trial Court No. 37,920A-85.
Before Chief Justice GRAY, Justice VANCE, and Justice REYNA (Chief Justice Gray dissenting).
MEMORANDUM OPINION
Appellant Sandra Kay Ray appeals from the trial court's order that gave her ex-husband Jeffrey Claude Ray final custody of their children A.L.R and J.A.R, ordered that she pay past-due child support, and awarded $6,700 in attorney's fees. In two issues, she argues that the trial court erred in entering a final custody order without providing her with proper notice of the hearing and that sufficient evidence does not exist to support the trial court's award of attorney's fees. We will reverse the order.
Background
Sandra and Jeffrey divorced in May 2001. After the divorce, the court awarded sole managing conservatorship of the two children to Sandra. Jeffrey filed a motion to modify to get temporary custody of the children on July 14, 2005. At the hearing, both parties agreed to temporary orders designed to honor the request of the children to move to Louisiana and reside with Jeffery. The trial court also issued a notice of setting for a bench trial on January 6, 2006. Over the next few months, Sandra drove to Louisiana every other weekend to take possession of the children until Jeffrey began to deny her access because of past-due child support. Both sides filed motions, and the trial court sent the case to mediation, but the disputes were not resolved.
Soon after the mediation, Sandra stopped working in College Station and moved to Oregon. On October 25, 2006, Jeffrey filed a motion for enforcement of child support, a copy of which was mailed to Sandra's attorney at her old address, without a setting date. Sandra filed a response contesting the amounts owed for child support and medical expenses. A hearing was set for November 27, 2006. That notice was served on November 25, 2006, to Sandra's address in Oregon, two days before the hearing date. Notice was also sent to Sandra's attorney at the same address where Jeffrey's original motion for enforcement of child support and all the previous motions were sent, but it was returned as undeliverable.
The case was called for trial despite the trial court's notice from Jeffery that Sandra and her attorney were not present. The trial court finalized the temporary orders, granted Jeffrey an arrearage judgment for past-due child support and medical expenses, and granted Jeffrey's attorneys' fees in the amount of $6,700.
Notice of Hearing
In her first issue, Sandra argues that she was denied due process when the trial court entered a final order against her without giving her adequate notice of the hearing. The Texas Family Code requires that notice of hearing on a motion for enforcement of a child support order or possession of a child must be given at least 10 days before the date of the hearing. TEX. FAM. CODE ANN. § 157.062 (Vernon 2002). The hearing was set for November 27, 2006, and Sandra was served on November 25, 2006, at her Oregon address.
Sandra cites several default judgment cases supporting her argument that a trial court's failure to provide notice constitutes a lack of due process and is grounds for reversal. See, e.g., LBL Oil Co. v. Int'l Paper Servs., 777 S.W.2d 390, 391 (Tex. 1989) (reversing default judgment for lack of notice of hearing); Custom-Crete, Inc. v. K-bar Servs., Inc., 82 S.W.3d 655, 660 (Tex.App.-San Antonio 2002, no pet.) (party challenging trial court judgment for lack of notice has burden of proving no notice); Blanco v. Bolanos, 20 S.W.3d 809, 811 (Tex.App.-El Paso 2000, no pet.) (trial court's failure to give required notice constitutes lack of due process and grounds for reversal); Vining v. Vining, 782 S.W.2d 261, 262 (Tex.App.-Houston [14th Dist.] 1989, no writ) (court held that once defendant has made appearance in case, he is entitled to notice of trial setting as matter of due process).
This case was started as a contested matter by Jeffrey to ask for permission to move the children to Louisiana. By making an appearance in that contested case, Sandra became entitled to notice of the trial setting as a matter of due process. Bruneio v. Bruneio, 890 S.W.2d 150, 154 (Tex.App.-Corpus Christi, 1994, no writ). Here, the record establishes that Sandra was not served with notice of the hearing until November 25, 2006. The hearing was held on November 27, 2006. A trial court's failure to comply with the rules of notice in a contested case deprives a party of the constitutional right to be present at the hearing, to voice her objections in an appropriate manner, and results in a violation of fundamental due process. Platt v. Platt, 991 S.W.2d 481, 483 (Tex.App.-Tyler 1999, no pet.). Because Sandra did not receive adequate notice of the hearing as required by section 157.062, we sustain Sandra's first issue. Blanco, 20 S.W.3d at 812. Accordingly, it is unnecessary to address Sandra's remaining issue.
Conclusion
Having sustained Sandra's first issue, we reverse the trial court's order and remand the cause for further proceedings.
DISSENTING OPINION
Since the summer of 2005, the children in this proceeding have been living with their father. After two contested hearings, which the mother lost, and one failed mediation, the matter was set for a final hearing. Neither the mother, nor her attorney appeared. Now on appeal, the mother contends she did not receive proper notice of the hearing. The Court reverses the final custody order on the basis that appellant, the mother of the children, did not receive adequate notice of the hearing on the final order. The Court and appellant, however, ignore the findings made by the trial court: appellant was duly and properly notified of the hearing.
Findings have been timely filed by the trial court, and they have not been challenged on appeal by the mother. Where the trial court's findings of fact are unchallenged by complaint on appeal, they are binding on the appellate court and are entitled to the same weight as a jury verdict, unless the contrary is established as a matter of law or there is no evidence to support the finding. McGalliard v. Kuhlmann, 722 S.W.2d 694, 696 (Tex. 1986). Any unchallenged findings of fact that support the judgment will preclude reversal of the case." In the Estate of Miller, 243 S.W.3d 831, 839 (Tex.App.-Dallas 2008, no pet.). I believe the findings of fact support the trial court's judgment.
Because the trial court's findings of fact are not challenged on appeal, and the unchallenged findings support the judgment, the Court should affirm the judgment. But the Court instead reverses the trial court's judgment.
I respectfully dissent.