Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

In re A.B.S.

Court of Appeals of Texas, Fourth District, San Antonio

April 25, 2018

In the INTEREST OF A.B.S., a Child

          From the 73rd Judicial District Court, Bexar County, Texas Trial Court No. 2011-CI-17935 Honorable David A. Canales, Judge Presiding

          Sitting: Sandee Bryan Marion, Chief Justice, Rebeca C. Martinez, Justice, Luz Elena D. Chapa, Justice

          MEMORANDUM OPINION

          Luz Elena D. Chapa, Justice

         This is a restricted appeal from a default order modifying conservatorship. We reverse the order and remand the case to the trial court.

         Jeremiah 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.

         To 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 fourth elements.

         Timeliness of Appeal

         Jeremiah 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 disagree.

         A 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.[1] 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.

         Error on the face of the record

         Kathleen 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 states:

00020 CITATION 4 SIBLEY KATHLEEN D

         ISS: ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.