Court of Appeals of Texas, Thirteenth District, Corpus Christi-Edinburg
SILVIA V. GUEVARA, Appellant,
MARCO ANTONIO GUEVARA, Appellee.
appeal from the 103rd District Court of Cameron County,
Chief Justice Valdez and Justices Contreras and Benavides.
M. BENAVIDES, Justice.
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
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.
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.
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.
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
filed this restricted appeal challenging the trial
court's final decree of divorce.
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.
Rule 245 Requirement
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 ...