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Guevara v. Guevara

Court of Appeals of Texas, Thirteenth District, Corpus Christi-Edinburg

December 21, 2017

SILVIA V. GUEVARA, Appellant,
v.
MARCO ANTONIO GUEVARA, Appellee.

         On appeal from the 103rd District Court of Cameron County, Texas.

          Before Chief Justice Valdez and Justices Contreras and Benavides.

          MEMORANDUM OPINION

          GINA M. BENAVIDES, Justice.

         In this restricted appeal, appellant Silvia Guevara (Silvia) challenges the trial court's divorce decree awarding custody and the entire marital estate to appellee, Marco Guevara (Marco). In four issues, Silvia argues: (1) the default judgment must be set aside because she was not given the required forty-five day notice of the final hearing; (2) Marco presented insufficient evidence to rebut the presumption that it is in the children's best interest to have both parents appointed joint managing conservators; (3) Marco presented insufficient evidence to support the judgment denying Silvia access to and possession of the children and deviating from the standard possession order; and (4) Marco presented insufficient evidence to support a judgment awarding him 100% of the community estate. We reverse and remand.

         I. Background

         Marco filed for divorce from Silvia after approximately twelve years of marriage. They have three children together: P.G., A.G., and M.A.G. In his petition, Marco requested the trial court appoint him as the sole managing conservator of the children and to order Silvia to pay child support.

         Silvia filed her original answer in response to the petition for divorce in the form of a general denial and requested attorney's fees from Marco. Silvia also filed a counter-petition for divorce, requesting that the trial court appoint Silvia the sole managing conservator of the children and order Marco to pay child support. Silvia also requested the trial court deny Marco access to the children due to a history of family violence in the two-year period prior to the filing of the lawsuit.

         On November 2, 2016, the trial court entered a written order that set the parties' petitions for divorce for final hearing on December 14, 2016, forty-two days from the date of the order. On December 2, 2016, Silvia's attorney filed a motion to withdraw, stating that Silvia failed to comply with their agreement and had not made any payments toward her legal fees. On December 14, 2016, Silvia's attorney stated to the trial court that she e-mailed Silvia the motion to withdraw, to which Silvia responded, but there had been no further communication between them. The trial court granted the motion to withdraw prior to the final hearing. Silvia did not appear at the final orders hearing.

         After hearing minimal testimony from Marco, the trial court appointed Marco the sole managing conservator of the children. The trial court also ordered visitation by Silvia as would be agreed to by the parties. Silvia was ordered to pay child support. Additionally, the trial court awarded Marco his sole separate property, all of his retirement account, a property in Brownsville, Texas, and a Nissan sedan.

         Silvia filed this restricted appeal challenging the trial court's final decree of divorce.

         II. Restricted Appeal

         To prevail on a restricted appeal, the appellant must establish that: (1) it filed its notice of restricted appeal within six months after the judgment was signed; (2) it was a party to the underlying lawsuit; (3) it did not participate in the hearing that resulted in the judgment complained of 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. Alexander v. Lynda's Boutique, 134 S.W.3d 845, 848 (Tex. 2004); Autozone, Inc. v. Duenes, 108 S.W.3d 917, 919 (Tex. App.-Corpus Christi 2003, no pet.). The first three requirements are jurisdictional, and we may not consider the appeal if they are not met. Clopton v. Park, 66 S.W.3d 513, 515 (Tex. App.-Fort Worth 2001, pet. denied); see Tex. R. App. P. 30. A restricted appeal is a direct attack on the judgment; the only limitation on the scope of the review is that error must be apparent on the face of the record. Norman Commc'ns v. Tex. Eastman Co., 955 S.W.2d 269, 270 (Tex. 1997) (per curiam). For these purposes, "the record" constitutes all documents on file with the court of appeals and all evidence that was before the trial court. Alexander, 134 S.W.3d at 848-49. The record conclusively shows that the appellant meets the first three requirements for a restricted appeal. The only question is the fourth prong of the test, whether error is apparent on the face of the record. We will only address Silvia's first issue because it is dispositive of the case. See Tex. R. App. P. 47.1.

         III. Rule 245 Requirement

         By her first issue, Silvia argues that error is apparent on the face of the record and that the trial court's judgment must be set aside because the trial court did not comply with the requirements of Rule 245 of the Texas Rules of Civil Procedure, causing Silvia to receive less ...


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