Court of Appeals of Texas, Fourth District, San Antonio
the 73rd Judicial District Court, Bexar County, Texas Trial
Court No. 2011-CI-17935 Honorable David A. Canales, Judge
Sitting: Sandee Bryan Marion, Chief Justice, Rebeca C.
Martinez, Justice, Luz Elena D. Chapa, Justice
Elena D. Chapa, Justice
a restricted appeal from a default order modifying
conservatorship. We reverse the order and remand the case to
the trial court.
and Kathleen were divorced in 2012. The decree made the
parents joint managing conservators of the child, A.B.S. The
decree granted Kathleen the exclusive right to designate the
child's primary residence without regard to geographic
location, imposed a standard possession order, and required
Jeremiah to pay monthly child support. On February 1, 2017,
Jeremiah filed a petition to modify the parent-child
relationship. On April 4, 2017, the trial court signed a
default order modifying the divorce decree. Among other
things, the order granted Jeremiah the exclusive right to
designate the primary residence of the child, terminated
Jeremiah's obligation to pay child support, and ordered
Kathleen to pay child support. Kathleen filed a notice of
restricted appeal on October 4, 2017.
prevail on a restricted appeal, appellant must demonstrate:
(1) she filed the notice of restricted appeal within six
months of the date of the judgment or order; (2) she was a
party to the suit; (3) she did not participate in the hearing
that resulted in the judgment complained of and did not file
a timely post-judgment motion or request for findings of fact
and conclusions of law; and (4) error is apparent from the
face of the record. Tex.R.App.P. 26.1(c), 30; Alexander
v. Lynda's Boutique, 134 S.W.3d 845, 848 (Tex.
2004). Kathleen was a party to the suit and did not
participate in the hearing that resulted in the default
order, nor did she file any timely post-judgment motions.
Jeremiah contends Kathleen cannot establish the first and
contends Kathleen did not timely file her notice of
restricted appeal because it was filed more than 180 days
after the trial court's order on the motion to modify. We
notice of restricted appeal must be filed within six months
after the judgment or order is signed. Tex.R.App.P. 26.1(c).
The Order In Suit to Modify was signed April 4, 2017, and
Kathleen filed her notice of appeal on October 4,
2017. The Texas Government Code defines
"month" as "a calendar month". Tex.
Gov't Code § 312.011(7) (2013); see Edwards
Aquifer Auth. v. Chem. Lime, Ltd., 291 S.W.3d 392, 401
n.55 (Tex. 2009). "Where 'month, ' as employed
in a statute, judicial proceeding, or contract, means
calendar month, a period of a month or months is to be
computed not by counting days, but by looking at the
calendar, and it runs from a given day in one month to a day
of the corresponding number in the next or specified
succeeding month." Pitcock v. Johns, 326 S.W.2d
563, 565-66 (Tex. Civ. App.-Austin 1959 writ ref'd)
(citing Gardner v. Universal Life & Accident Ins.
Co., 164 S.W.2d 582, 583 (Tex. Civ. App.-Dallas 1952,
writ dism'd w.o.j.)); see Medina v. Lopez-Roman,
49 S.W.3d 393, 397-98 (Tex. App.- Austin 2000, pet. denied).
Kathleen's notice of appeal was therefore due October 4,
2017, and was timely filed on that day.
on the face of the record
contends there is error on the face of the record because the
return of service was not on file with the clerk for ten days
before the default order was rendered. Neither the citation
nor return of service is contained in the record. Both
parties cite to an entry on the electronic docket sheet that
4 SIBLEY KATHLEEN