NO. 07-03-0078-CV IN THE COUR

T OF APPEALS FOR THE SEVEN TH DISTRICT OF TEXAS

AT AMARILLO PANEL C NOVEMBER 4, 2004

______________________________ IN THE MATTER OFTHE MARRIAG E OF ARACELIA RODRIQUE Z AND DAVID GONZALES MAR TINEZ AND IN THE INTEREST OF A ARON MICHAEL MA RTINEZ AND ALEXANDRA ANNE MARTIN EZ, CHILDR EN

_________________________________ FROM THE 154 TH DISTRIC T COURT O F LAMB COUNT Y; NO. 15,834; HON. FELIX KLEIN, PRESIDING

_______________________________

Opinion

_______________________________ Before JOHNSON, C.J., and QUINN and REAV IS, JJ. D avid Gonz ales M artin ez, w ho is i ncarcerated in pr ison, appeal s from adivorc e decree. Through the decr ee, the trial court appointed Martinez’ common law wife, Aracelia Rodr iquez, sole managing conservator and cha n ged the last names of their tw o minor children. Several issues are before us. Yet, we address only the f irst s ince it is d ispo sitive of the appeal. Through it, Martinez argues that the trial court erred i n denying his motion for new trial si nce he was d enied notice of the t rial setting asrequired by due proces s and Texas Rule of C ivil Pr

ocedure 245. We reverse th e judgment of the tr ial court.2 Issue One --

New Trial D ue to Lack o f Notice As previous ly mentioned, Martinez asserts that

he should have been granted a new trial because the trial court did not af ford him appropriate notice of the hearing. W e sustain the issue. The first time a contested case is set for trial, the litigants must be af forded at least 45 days prior noti ce of the date, unless the parties ag ree otherw ise. T EX
. R. C IV
. P. 245. But, because it is presumed that a trial court he ars a case only after appropriate not ice has been given, the obligati on lies w ith the complai nant to affirmativ ely ill ustrate th e lack o f notice or compliancewith Ru le 245. Campsey v. Campsey, 111 S.W .3d 7 67, 7 71-7 2 (Te x. App .–Fort Worth 2003, no pet.); Blanco v. Bola nos, 20 S.W.3d 809, 811 (Tex. App.–El Paso 2000, no pet.)

. Here, the reporter’s record establishes thatthe trial occurred on October 28, 2002. F urthermore, the trial court signed the notice sett ing the tri al for that date on Sept embe r 19, 2002 . Given this, Marti nez was aff orde d onl y 3 9 days pri or notice of the hearing, as opposed to the 45 days mandated by Rule 245. Furthermore, no one conten ds t h at the October 28 th setting w

as anything other

than the first for this proceedi ng or that the par ties agreed to that date. Nor doesthe appellate r ecord depict ot herwise. Addi tion ally, Martinez

had filed an answer and counterclaim to his wife’s peti tion (on August 27, 2002) and not only sought joint conservatorship of the children but also asked thatthe children ’s names be left unc hanged. Thus, it can be said that

the proceeding was contested.3

So too did he aver in an unsworn declaration attached to his motion for new t rial that he 1) was n ot provided with noti ce of the hearing before October 28 th and 2) first became
aware of the trial dat e only af ter recei ving a copy of the final judg ment from opposing counsel. Denyi ng re ceipt of notice r ebuts the presumpti on that due notice was afforded the litigant

. Smith v. Holmes , 53 S.W.3d 815, 818 (Tex. App.–Aus tin 2001, no pet.). And, when coupled wi th the 39-day period between theday the tr ial court s et the cause for trial and the day trial occurred, we cannot but hold that the trial cou rt abused its discretion in denying t he motion for new trial. Smith v. Levine, 911 S.W.2d 427, 433 (Tex. App.–San Antonio 1995, writdenied) (hol ding that the decision to g rant or deny a mot ion for new t rial lies within the discretion of the trial court). Acco rdin gly, the divor

ce decree is reversed, and the cause is remanded for further proceedings

.
Per Curiam