Court of Appeals of Texas, Third District, Austin
THE DISTRICT COURT OF TRAVIS COUNTY, 200TH JUDICIAL DISTRICT
NO. D-1-FM-15-003943, HONORABLE SCOTT H. JENKINS, JUDGE
Justices Puryear, Pemberton, and Bourland.
Allan Arbogust brings this restricted appeal of a no-answer
default divorce decree ending his marriage to Kathleen J.
Graham. Arbogust contends that the trial court erred in
rendering the decree because there is "no evidence"
to support it due to there being no record made of the
testimony at the hearing granting the default judgment. He
also complains that the trial court improperly awarded his
separate property to Graham. We reverse the final divorce
decree and remand this cause for further proceedings.
order to prevail in a restricted appeal, Arbogust must prove
that: (1) he filed the notice of restricted appeal within six
months after the judgment was signed; (2) he was a party to
the underlying lawsuit; (3) he did not participate at 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. Pike-Grant v.
Grant, 447 S.W.3d 884, 886 (Tex. 2014) (per curiam). The
only element at issue in this case is whether error is
apparent on the face of the record.
purposes of a restricted appeal, the face of the record
consists of all papers on file in the appeal, including the
reporter's record. See Norman Commc'ns v. Texas
Eastman Co., 955 S.W.2d 269, 270 (Tex. 1997) (outlining
elements of restricted appeal using former "writ of
error" terminology); see also Tex. R. App. P.
30 ("Restricted appeals replace writ of error appeals to
the court of appeals. Statutes pertaining to writ of error
appeals to the court of appeals apply equally to restricted
appeals."). The absence of legally sufficient evidence
to support a judgment is reviewable in a restricted appeal.
See Norman Commc'ns, 955 S.W.2d at 270. Arbogust
contends that no evidence exists on the face of the record to
support the trial court's decree because no record was
made of the hearing granting the default decree, preventing
any review of the sufficiency of the evidence. We agree.
does not dispute the non-existence of a reporter's
record, and the divorce decree confirms its non-existence in
its recital, "The making of a record of testimony was
waived by the parties with the consent of the Court."
Additionally, Arbogust requested that a reporter's record
of the default-judgment hearing be filed with this Court, but
none was provided, and the clerk of this Court received a
letter from the official court reporter of the trial court
stating that a record of the proceedings was not made.
absence of a reporter's record constitutes error apparent
on the face of the record as a matter of law and requires
reversal of the decree and remand for a new trial. See
Rogers v. Rogers, 561 S.W.2d 172, 173-74 (Tex. 1978)
(reversing no-answer default judgment via appeal by writ of
error because no reporter's record existed); Smith v.
Smith, 544 S.W.2d 121, 122 (Tex. 1976) (holding that
appellant "established his right to a retrial of [the]
case because of his inability to procure a statement of facts
[now called a reporter's record]"); Stone v.
Talbert Operations, LLC, No. 04-14-00008, 2014 WL
7439931, at *1 (Tex. App.-San Antonio Dec. 31, 2014, no pet.)
(mem. op.) ("Because no reporter's record was taken
of the trial court's evidentiary hearing resulting in the
no-answer default judgment, error is apparent on the face of
the record."); Bain v. Bain, No. 2-06-215-CV,
2007 WL 174463, at *3 (Tex. App.-Fort Worth Jan. 25, 2007, no
pet.) (mem. op.) (same); see also Tex. R. App. P.
13.1 ("The official court reporter or court recorder
must: (a) unless excused by agreement of the parties, attend
court sessions and make a full record of the proceedings . .
. ."). We sustain Arbogust's first
reverse the trial court's final divorce decree and remand
this cause for further proceedings.