COURT OF A PPEAL S EI GHTH D I STRI CT OF TEX AS ELPASO, TEXAS

I N THE I NTEREST OF P.C. AND K.P.C., minor children. § § § § § § No. 08-09-00081- CV

Appea l from the 388th District Court of El Paso County , Texas (TC# 2001CM8131)

O P I N I O N Appellant, I rma Primero, appea ls the trial court’s order modify ing visitation. I n two issues, she complains of a due-pr ocess violation and alleg es that the trial court’s visitation order is vag ue. Ag ree ing that the trial court violated Primero’s due-pr ocess rig hts, we reve rse and rema nd for further
proce eding s without addressing her othe r complaints. BACK GR OUND Primero and Juan Castill o marrie d in 1972, and later had two children, P.C. and K.P.C. I n 1997, the pair divorce d in Mexi co, and acc ording to the terms o f the Mexi can divorce decr ee, Primero was g rante d custody of the children and Castillo was order ed to pay ch i l d s u p port. Sometime later, both parties moved to El Paso, Texas. On J anuar y 20, 2004, Castillo filed a motion

to modify custody in Texas, and afte r a trial, the trial court modified the divorce decr ee, appointing Castillo as sole manag ing conser vator with exclusive rig ht to desig nate the residenc y of the children. The trial court also order ed Primero to pay child support in the amount of $ 1 8 7

. 5 0 p er month. On November 29, 2007, Primero filed a petition to modify her child-support obli gat i o n . Castillo filed a g ener al denial, and the ca se wa s ref err ed to the assoc iate judge

. On September 12,2008, Primero appea led the associate judge ’s ruling to the ref err ing court. On Dec ember 11, 2008, the parties announce d rea dy for trial, and the court set the case for final hear ing on Fe bruar y 3, 2009. Seven day s later, Castillo filed a cross-motion seeking to modify Primero’s ac ce s s t o and possession of t he children, reque sting that the court modify Pr i m er o ’s periods of poss ession from standard to “structur ed vis itation in El Paso, Texas at t he C h i l d C ri s i s Center.” Subsequently , on Fe bruar y 3, 2009, Primero’s counsel filed an “A gre ed Motion to Wit hdraw ,” which noted that Primero wanted to repr esent herse lf pro se and asked the court to allow her counsel to withdraw from the case . The motion also acknow ledg ed that counsel had informed Primero of all pending settings and deadlines i n t h e case , including the final hear ing set for Tuesday , Fe bruar y 3, 2009, at 9 a.m. On Fe bruar

y 3, 2009, the court held the final hear ing on Primero’s motion to modify her child-support obliga tion. Prior to the hear ing, howeve r, the court hear d counsel’s motion to withdraw, and with the aid of an interpre ter, Primero, who speaks Spanish, aske d that counsel continue to re p re s en t h er for the sole matter of child support. The trial court g rante d Primero’s
reque st but did not g rant counsel’s motion to withdraw at that time. Rather, she informed the parties that the motion would be g rante d afte r the entry of the final order on child support. The court then
g rante d Primero’s reque st to modify her child-support obliga tion and order ed counsel to prepa re an order

. Once the order was prepa red and signe d, the court indicated that it would sign another order
g ranting counsel’s motion to withdraw. During the same hear ing, the court orally set Castillo’s cross-motion to modify visitation for Marc h 2, 2009. The court asked Primero if she understood that the motion t o m o d i fy fi l ed by Castillo was set for Marc h 2, 2009, and Primero responde d “no.” Counsel, how ever , informed the court that he would explain it to Primero. The c ourt then i nstructed Castil lo’s attorney to prepa re the order setting t h e h ea ri ng . No written order setting the hear ing was ever prepa red, signe d, orenter ed, and nothing in the rec ord indicates that notice was issued and serve d on Primero or that she

rec eived actua l notice of the hear ing apar t from counsel’s statement that he would explain it to her. On Marc h 2, 2009, the court held a hear ing on Castillo’s motion to modify

. Howeve r, neither Primero, nor her former attorney wer e prese nt. The court rec og nized that there was no notice of setting contained in its file and indic at ed t h at she did not “wa nt to waste time doing this twice.” Howeve r, the court acknow ledg ed that one witness wa s waiting to testify by phone and proce eded with the hear ing. At the conclusion of the hear ing, the court g ra n t ed Castillo’s motion to modify “with the cave at that the arr ang ements be made at the crisis cente r for supervised acc ess.” The written order, however, does not state when the vi sits should occur , how often t h ey s h ould occur , or how long they

may last. 1
DISCUSSIO N I n I ssue One, Primero contends that the trial court committed reve rsible err or by rende ring , in essenc e, a defa

ult judgme nt modify

ing visitation despite any evidenc e in the rec ord establishing that she re ceive d notice of the hear ing. We ag ree . 2 Certainly , a petitioner is entitled to notice of a trial setting as a matter of due proce ss. In re Brilliant , 86 S.W .3d 680, 693 (Tex. A pp. – El Paso 2002, no pet.); Platt v. Platt , 991 S.W .2d 481, 483 (Tex. App. – Ty ler 1999, no writ). I ndeed, the United States Supreme Court has noted that the “funda mental require ment of due proce ss in any proce eding which is to be acc orded finality is notice

rea sonably

calc ulated, under

all the circ umstances, to a pprise interested parties of the pendenc y of the action and aff

ord them an opportunity to prese nt their objections.” Mullane v. Central Hanove r

W e n o t e t h a t t h e o r d e r i s i n s u f f i c i e n t t o e s t a b l i s h v i s i t a t i o n ; h o w e v e r , g i v e n o u r r e s o l u t i o n o f t h e f i r s t 1 i s s u e , w e n e e d n o t a d d r e s s t h e s e c o n d

.

C a s t i l l o h a s n o t f

i l e d a b r i e f r e s p o n d i n g t o P r i m e r o ’ s a s s e r t i o n s . 2Bank & Trust Co. , 339 U.S. 306, 314, 70 S.Ct

. 652, 657, 94 L .Ed. 865 (1950 ). “Failure to g ive

notice viol at es ‘t h e m o st rudimentary demands of due proce ss of law.’” Peralta v. Heights Med. Ctr., Inc. , 485 U.S. 80, 84, 108 S.Ct

. 896, 99 L .Ed.2d 75 (1988), quoting Armstrong v. Manzo , 380 U.S. 545, 550, 85 S.C t. 1187, 1190, 14 L .Ed.2d 62 (1965). The law presumes that a trial co u rt wi l l h ear a case only afte r proper notice to the party

. Platt , 991 S.W .2d at 484; Delgado v. H ernandez , 951 S.W .2d 97, 99 (Tex. App. – C orpus Christi 1997, no writ). Rule 245 states that a court “may set contested case s on written reque st of any party , or on the c ourt’s own motion, with rea sonable noti ce of not less than forty -five da y s to the parties of a first setting for trial, or by ag ree ment of the parties; provided, howeve r, t h at wh en a case previously has been set for trial, the [c] ourt may res et said contested case to a later date on any

rea sonable notice to the parties or by ag ree ment of the parties.” T E X
. R. C I V
. P. 245. Such notice, unless otherwise direc ted by the court, must be written, serve d on all other parties, and filed with the cler k. T E X
. R. C I V
. P. 2 1 a; El Paso County L ocal Rule 3.03(B ), available at http:// www.e pcounty .com/councilofjudg es/documents/elpasoc ounty localrule s.pdf (last visited 3/30/11). Acc ording ly , when a trial court fails to comply with the rules of notice in a contested case , the unnot iced party

is deprived of

the consti tutional rig ht to be present at the hearing and to voice her objections, which results in a violation of due pr ocess. Armstrong , 380 U.S. at 550; Brilliant , 86 S.W .3d at 693; Langdale v. Villlamil , 813 S.W .2d 187, 190-91 (Tex. App. – Houston [14t h Dist.] 1991, no writ). Her e, the court orally set the motion t o m o d ify visitation for Marc h 2, 2009. Although Primero was prese nt when the court set the hear ing, we cannot conclude , under the fac ts of this case , that such “notice” was sufficie nt to alleviate any due-pr ocess conce rns. First, when the court asked if Primero understood that the motion was set for Marc h 2, 2009, Primero, who spoke Spanish andwas using an interpre ter, answe red no. Although Primero’s counsel stated that he would explain it

to he r, the discussion be tween Primero and her counsel is not on the rec ord, and her counsel never filed any thing with the court, stating that he did in fac t explain that the motion was set for Marc h 2, 2009. Moreove r, we note that al t h o u gh confusing , the rec ord seeming ly ref lects that the court verba lly g rante d counsel’s withdrawa l from the case as to all matters save the child-support issue at the hear ing on Fe bruar

y 3, 2009, as the court simply reque sted counsel to stay on to prepa re the final order on child support. Thus, it seems clea r, by counsel’s failure to attend the cross-motion to modify visitation hear ing on Marc h 2, 2009, that counsel was not repr esenting Primero conce rning the motion to modify visitation for which confusion of that hear ing date was acknow ledg ed on the

rec ord. See Mat his v. Lockwood , 166 S.W .3d 743, 745-46 (Tex. 2005) (notice serve d on former attorney was no long er notice to liti g ant af ter a ttorney

withdrew)

. I n any case , as st ated above, noti ce of the hearing for March 2, 2009, based on the fa cts of this case , was require d to be in writing

. Although o ra l n o t i ce o f a hear ing may be sufficie nt in

cer tain situations, h er e, t h e trial court expressly instructed Castillo’s attorney to reduc e the oral setting to a wr itten order. H oweve r, C astillo’s attorney never reduc ed the oral setting t o a written order as instructed by the trial court, and the court acknow ledg ed as much at the hear ing on Marc h 2, 2009. To alleviate any due proce ss conce rns, the trial court was require d to comply with her rules of notice in this contested case . See Langdale , 813 S.W .2d at 191. Be cause it did not, and beca use the rec ord does not contain any written notice of the hear ing, much less that such notice was g iven

to Primero, we cannot conclude that Primero had notice of the hear ing. And beca use the rules of notice wer e n ot complied with in this contested case , Primero was cer tainly deprive d of her constitutional rig ht to be prese nt at the hear ing and to voice her objections , whi ch resulted in a violation of fundame ntal due proce ss. There fore , we fi nd that the judgme nt modify ing visitationshould be set aside an d sustain Primero’s first issue. Brilliant , 86 S.W .3d at 693; Langdale , 813

S.W .2d at 191 (ca ses reve rsing judgme nt when t h ere was no evidenc e in the rec ord to show that losing pa rty rec eived notice of the setting ). CONCLUSION Having sustained Primero’s first issue, we do not addre ss the second. Acc ording ly , the trial court’s judg ment is rever sed, and the case is remande d for f urther pr ocee dings.

GUADA L UPE RI VERA, J ustice Marc h 30, 2011 Be fore Chew, C.J ., McClure, a nd Rivera, JJ

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