Opinion issued August 1, 2023

In The 

## Court of Appeals For The 

## First District of Texas

———————————— NO. 01 - 22 - 00695 - CV

——————————— R ODNEY RAY , Appella nt

V. TAMISHA TOTTENHA M , Appell e e On Appeal from County Court at Law No 1 Galveston County, Texas Trial Court Ca se No. 21 - FD - 2306
MEMORANDUM OPINION Appellant Ro dne y Ray filed a restricted appeal from the trial court ’ s fi n al decree of divo rce from appellee Tamisha Tottenham. R a y argues that (1) he meets the procedural r equirements for a restricted ap peal , and error is apparent on the face of the record because (2) the t rial was he ld without 45 days ’ notice to him ;2

(3) the r ecord does not in dicate that he was served with notice of the trial; and (4) Tottenham presented insufficient evidence to support the p roperty division in the final decree. Because Ray did no t receive the 45 days ’ notice required by Texas Rule of Civil Pr o ced ure 245, we reverse and remand for a new trial. Background According to Tottenham ’ s divorce petition, she and Ray married on Ju ly 26 , 2021
. Tottenham filed for divorce on November 4, 2021
. It appears that Ray was served with citation on J anuary 25, 202 2
. On February 11, 2022, R a y filed a n
answer generally denying Tottenham ’ s claims , with a prayer asking the trial court

“ to grant [ him] a divorce ” a nd “ to make the other orders [he has] asked for in this Answer and any other orders to which [he was] entit led. ” The record contains a notice dated April 14, 2022 , addressed to Ray at the P.O. b ox listed in his answer, notifying him of a bench trial setting for April 28, 2022. R a y fail ed to appear a t the b ench trial on April 28, 2022
. Tottenham pro vided brief testi mony. She told the trial co urt that she had served Ray with cita tion and mistakenly stated that h e “ has not filed an appearanc e. ” To tt e n ham identified one item of community prop erty

— a work tr uck associat ed with Ray ’ s business. She asked that the trial court remove her as a co - gu arantor on the t ru ck loan , making Ray the sole guarantor. She requested 50% o f the funds from the busin ess un til she was successfully removed as a guarantor for the truck. She a lso3

identified debt from a business loan and gas cr edit card that she wanted assigned to Ray, and she as ked for reimbursement of amounts she had paid to those accounts. Th e clerk ’ s r ecord contain s documents, such as screen shots and account statements, regarding the a ccounts she identified on the record a t the hearing. The trial court found on the record th at Ray “ had notice to appear today, ” that he “ failed to app ear and is wholly i n defau lt. ” The trial court granted the divorce. The final decree of divorce , signed Apri l 28, 2022, identified one i tem of
c ommunity property

— the truck. It also allocated to R a y se veral debts associ ated with his business: a signature lo an through “ Coastal Commun ity FCU ” ; the WEX gas cre dit card; and the commercial loan for the truck
. The final decree included an appendi x consisting of Tottenham ’ s proposed division of the assets, in which she requeste d “ 1/2 of the funds received from [ the business] R&T Ray’ s LLC s ince October 7, 2021 (day contract was signed) and truck began transporting goods until Tamisha Tottenham

- Ray i s removed as 50% g uarantor on loan. ” However , n othing in the final decree itself a warded any payments or reimb ursements from the marital
es tate t o Tottenham. Tottenham attempted to enforce the decree by f iling a petition for enforcement of division of prop erty by contempt. On Se ptember 27, 2022, Ray filed a notice of restricted appeal.4 Restricted Appeal Ray contends in fou r issues that he is entitl ed to reversal of the trial court ’ s decree through a restricted appeal
. A. Standard of Review To prevail on a res tricted appeal, an appellant must demonstrate that : (1) he filed notice of the restricted appeal within six months after the judgment was si gned; (2) he was a party to the underlying lawsuit; (3) he di d not participate in the hearing that resulted in the judg ment complained of, and did not timely file any p ost
- judgment motions or requests for findings of fact and conclusi ons of law; and (4) error is apparent on the face of the record. Ex parte E.H. , 60 2 S.W.3d 486, 495 (Tex. 2020) (citing Pike

- Grant v. Grant , 447 S.W.3d 884, 886 (Tex. 2014) (per curiam)); se e T EX . R. A PP . P . 30. T he “ face of the record ” consists of all th e documents that wer e befo re the trial court at the time it rendered judgment. See Alexander v. Lynda ’s Boutique , 134 S.W.3d 845, 848

– 49 ( Tex . 2 004) ; see als o Tex. Dep ’ t of Pub. Safety v. Salazar , No. 13

- 12

- 00771

- CV, 2013 WL 4399185, at *2 (Tex. App.

— Corpu s Christi

– Edinburg A ug. 15 , 2013, no pet.) (mem. op.) (“The ‘face of the record’ in cludes all papers on file in the appeal and the reporter ’ s record, if any. ”). The requirement that error be apparent on the face of the record means

“ error that is mere ly inferred will not suffice. ” Ginn v. Forrester , 282 S.W.3d 430,5

431 (Tex. 2009) (per curiam) . H owever, restricted appeals may include challenges to the legal and factual sufficiency of the evidence. Norman Commc ’ n s v. Tex. Eastman Co. , 955 S.W.2d 269, 27 0 (Tex. 1997) (per c uriam). “Re view by [restricted appeal] affords an appellant the same scope of review as an ordinary appe al, that is, a review of the entire case.” Id. B. Analysis We agree with Ray that he established the procedural requirements of a restr icted appeal. He fil ed his noti ce of restricted appeal within six months of the date that the trial court signed the decree of di vorce, he was a party to the underlying lawsuit, and the reporter ’ s record and the decree itself affirmatively demonstrate that Ray did not participate in the final hearing. See T EX . R. A PP . P
. 30 ; Ex parte E.H. , 602 S.W.3d at 495
. In h is remaining issues, Ray asserts various errors that he contends are appar ent o n the face of the record. We will only address R a y ’ s s econd issue, c ontending that he did not recei ve t he 45 days ’ notice of the final hear ing as required by Rule of Civil Procedure 245 , because it is dispositive of the case. See T EX . R. A PP . P . 47.1. “A post

- answer default is one rendered when the defendant has filed an
a nswer, but fails to appea r at t rial.” Hildebrand v. Hi ldebrand , No. 01

- 18

- 0 0933

- CV , 2020 WL 4118023 , at *4 (Tex. App.

— Houston [1s t Dist.] J uly 21, 2020, no pet.) ( mem. op.) (quo ting Mahand v. Delaney , 60 S.W.3d 371, 373 (Tex. App.

—6

Houston [1st Dist.] 2001, no pet.) ). When a party has fi led an answer, he has appeared and place d “in issue” the matters raised in the plaintiff ’ s petitio n, and the case becomes “contested.” Highsmith v. Highsmith , 587 S.W.3d 771, 777

– 78 (Tex. 2019) ; Hildebrand , 2020 W L 4118023, a t * 4
. Texas Rule of Civi l Proc edure 245 provides that a t rial court “may set contested cases on written request of any party, or on the court ’ s own motion, with reasonable notice of not less than forty

- five days to the parties o f a first setting for trial , or by agreement of the partie s.” T EX . R. C IV . P . 245 ; In re K.M.L. , 443 S.W.3d 101, 118 (Tex. 2014)
. “ If a timely answer has be en filed in a contested case or the defendant has otherwise made an appearance, due process rights are violated when a judgment is subsequently entered withou t the party having received notice of the setting of the case [.] ” In re K.L .M. , 443 S.W.3d at 118

– 19 (holding that defendant i s entitled to notice of case setting “ even when that party previously waived notice of citat ion ” ) ( citing Peralta v. Heights Med. Ctr. , 485 U.S. 80, 86

– 87 (1988) )
. “ A trial court ’ s failure to comply with the notice requirements in a contested case deprives a party of his constitutional right to be present at the hearing and to voice his objections in an appropriate manner,
resu lting in a violation of fundament al due process. ” Id. (citing Armstrong v. Manzo , 380 U.S. 545, 550 (196 5) ) ; Blanco v. Bolanos , 20 S.W.3d 809, 811 (Tex. App.

— El Paso 2000, no pet.)
. “ Thus, a plaintiff may not take a post

- answer def ault7

judgment against a d efenda nt on less than 45 days ’ no tice of the final hearing; otherwise the post

- answer default judgment i s ineffectual and should be set aside. ” H ildebran d , 2020 W L 4118023 , at *4 (citing Blanco , 20 S.W.3d at 811) ; s ee T EX . R. C IV . P . 245; In re I.L.S. , 339 S.W.3 d 156, 159 (Tex. App.

— Dalla s 2011, no pet.) (holding that notice required by Rule 245 “is mandator y and involves the constitutionally protected right of due process ” )
. We presume that trial courts will only hear case s upon pr oper notice to the partie s. Hil debrand , 2020 WL 4118023 , a t * 4 (citing Osborn v. Osborn , 961 S.W.2d 408, 411 (Tex. App.

— Houston [ 1st Dist.] 1997, pet. denied) )
. “ To rebut this presumption, an appellant must affirmatively show a lack of notice, which genera lly requires affidavits o r othe r com petent evidence showin g that he did not receive proper notice. ” Id. ; Blanco , 20 S.W.3d at 811 ; Osborn , 961 S.W.2d at 411. Here, Ray filed an answer containing a general denial , which placed in issue and contested the mat ters that Tottenham raise d in h er petition. See Highsmith , 587 S.W.3d at 777

– 78 ; Hi ldebrand , 2020 WL 4118023 at * 4

– 5
. Ray therefo re had a
cons titutional due process right to receive adequate notice of the final hearing. The record contains a notice dat ed A pril 14, 2022 , p u rporting to n o tify Ray of the April 28, 2022 bench trial se tting . The record does not indicate when or how this notice was served on Ray, but we are aware that the rules do not impose a duty on the trial court or its personnel to include d ocumentary evidence in th e reco rd t hat8

notice of a trial setting was given. See Richardson v. Sims , No. 01

- 15

- 01115

- CV, 2016 WL 5 787291, at * 2 (Tex. App.

— Houston [1st Dist.] Oct. 4 , 2016, no pet.) (mem. op.) (citing Garcia v. Arbor Green Owners Ass ’ n , 838 S.W.2d 800, 803 (Tex. App
. –

– Hou ston [1st Dist.] 1992, writ denied) ). Nevertheless , even if we presume that the notice was immedia tely served on Ray, the face of the rec ord affirmatively demonstrates that Ray did no t receive the 45 days ’ notice required by Rule 245. At most , he re ceived only 14 days ’ notice. See Hildebrand , 2020 WL 4118023 , at * 5 (concluding that 39 days ’ notice was insufficient to satisfy requirements of Rule 245); Blanco , 20 S.W.3d at 811

– 12 ( holding that filing notice of setting 15 days before final hearing was insuff icien t under Rule 245); see also T EX . R. C IV . P . 245 (re quiring at least 45 days ’ notice of initial trial setting)
. Because the record affirmatively shows that Ray received less than 45 days ’ notice of the final hearing, he w as deprived of his due pr ocess right to receive notice. See Highsmith , 587 S.W.3d at 777

– 78; Hilde brand , 2020 WL 4118023 , a t *4

– 5 ; Blanco , 20 S.W.3d at 811

– 12
. We hold, therefore, that the post

- answer default divorce decree is ineffectual for lack of adeq uate notice. See Hildebra nd , 20 20 WL 411 8023 , at *5 ( observing that revers ing and remand ing for new trial is app ropriate remedy for la ck of ad equate notice ) ; Blanco , 20 S.W.3d at 811 (holding that, i f notice is not given i n9

compliance with R ule 245 , “ the post

- answer default judgme nt sho uld be set aside because it is ineffectual ” )
. We sustain Ray ’ s second issue. Conclusion Because Ray has established his right to a restricted appeal, in cluding by establishing that the face of the record demons trates th at he received inadequate noti ce of the tr ial setting, we reverse the trial court ’ s decree and remand for a new trial.

Richard Hightower Justice Panel consists of Justices Kelly, Hightower, and Countiss.