Opinion
No. 07-20-00114-CV
08-03-2020
IN THE MATTER OF THE MARRIAGE OF JOEL DAVID TAYLOR AND SVITLANA TSEHELNYK TAYLOR
On Appeal from the 414th District Court McLennan County, Texas
Trial Court No. 2018-83-5 , Honorable Vicki Menard, Presiding
MEMORANDUM OPINION
Before QUINN, C.J., and PIRTLE and PARKER, JJ.
Svitlana Tsehelnyk Taylor appeals from a final order annulling her marriage to Joel David Taylor. Though multiple issues pend for review, her first is dispositive. Through it, she contends that the order should be reversed since she was denied 45 days prior notice of the trial date. We agree and reverse.
Because this appeal was transferred from the Tenth Court of Appeals, we are obligated to apply its precedent when available in the event of a conflict between the precedents of that court and this Court. See TEX. R. APP. P. 41.3.
The limited record before us discloses that the hearing upon Joel's petition to annul the marriage was held on December 19, 2019. The order annulling the marriage was signed by the trial court on the same day. Therein, the trial court noted that Svitlana, through her attorney of record, failed to appear, despite being "properly notified of the hearing." Notice of the hearing was sent by the trial court administrator to Svitlana, through her attorney, on November 8, 2019. Svitlana moved for a new trial on January 17, 2020, contending, among other things, that she lacked notice of the hearing. That motion was denied.
The order also stated that Joel waived the making of a record of the testimony at the hearing.
Per Texas Rule of Civil Procedure 245, a trial court "may set contested cases on written request of any party, or on the court's own motion, with reasonable notice of not less than forty-five days to the parties of a first setting for trial, or by agreement of the parties." TEX. R. CIV. P. 245. Failing to provide a defendant the requisite prior notice of the first trial setting in a contested case deprives the litigant of his constitutional right to be present and to voice objections in an appropriate way. Fifteen-Thousand One-Hundred Ninety-Six Dollars v. State, No. 03-16-00015-CV, 2016 Tex. App. LEXIS 12294, at *3 (Tex. App.—Austin Nov. 17, 2016, no pet.) (mem. op.). Furthermore, compliance with Rule 245 is mandatory. $2,424.21 in United States Currency v. State, No. 02-18-00303-CV, 2019 Tex. App. LEXIS 6188, at *5-9 (Tex. App.—Fort Worth July 18, 2019, no pet.) (mem. op.).
That the cause before us was a contested case is clear; Svitlana counter-petitioned for divorce. Furthermore, no one disputes that the notice of hearing sent on November 8, 2019 and setting trial for December 19, 2019 was actual notice of the first trial setting. Similarly undisputed is that 45 days from November 8 falls on December 23rd. In the trial court convening trial on December 19th, Svitlana was denied the 45-day prior notice to which Rule 245 provided her.
Our review of the record uncovered no prior trial setting.
Consequently, we reverse the order of annulment signed on December 19, 2019 and remand the cause to the trial court.
Brian Quinn
Chief Justice