                               Fourth Court of Appeals
                                     San Antonio, Texas
                                 MEMORANDUM OPINION
                                         No. 04-12-00315-CV

                                    Dakota Snow PIKE GRANT,
                                             Appellant

                                                   v.

                                        Jeffrey Alan GRANT,
                                               Appellee

                    From the 83rd Judicial District Court, Val Verde County, Texas
                                        Trial Court No. 27731
                            Honorable Bert Richardson, Judge Presiding 1

Opinion by:       Marialyn Barnard, Justice

Sitting:          Karen Angelini, Justice
                  Marialyn Barnard, Justice
                  Luz Elena D. Chapa, Justice

Delivered and Filed: February 13, 2013

DISMISSED FOR WANT OF JURISDICTION

           This is a restricted appeal from a judgment in a divorce proceeding. On appeal, appellant

Dakota Snow Pike Grant (“Pike Grant”) contends the judgment should be set aside because: (1)

she did not receive notice of the final hearing; (2) the pleadings do not support the relief granted

with regard to conservatorship and possession and access to the minor child; and (3) there was

legally and factually insufficient evidence to support the relief granted regarding conservatorship



1
 The Honorable Bert Richardson, sitting as a visiting judge, signed the final judgment. The Honorable Carl
Pendergrass, deceased, was the judge of the 83rd Judicial District Court, Val Verde County, Texas.
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of the minor child, possession and access to the minor child, child support, and division of the

martial property. We dismiss the appeal for want of jurisdiction.

                                                BACKGROUND

        Dakota Snow Pike Grant and Jeffrey Alan Grant (“Grant”) were married in 2008. During

the marriage, they had one child, a boy, who was born in December 2008. The couple separated

in May 2009. Before the separation, they resided in Val Verde County, Texas.

        Not long after the couple separated, Grant filed for divorce and Pike Grant was

personally served, according to the sheriff’s return, with a “non-resident citation” at “6 High

Street, Bainbridge, Chenango County, New York 13733” on June 2, 2009. Pike Grant filed an

answer on June 17, 2009; her attorney was listed as David B. Black. Thereafter, Pike Grant filed

a counterpetition for divorce. The matter was dormant for quite some time until February 2011

when Grant filed motions to expedite hearing to determine custody and to modify temporary

orders. 2 That same month, the trial court granted the motion to expedite hearing and modified its

prior temporary orders to require that the minor child be returned to Texas. After an April 1,

2011 hearing, the trial court further modified its prior temporary orders, naming Grant temporary

sole managing conservator and ordering Pike Grant to release custody of the child to Grant

within ten days of the date of the hearing. Pike Grant was awarded temporary possessory

conservatorship with standard possession. Although Pike Grant received notice of this hearing

from the trial court via facsimile transmission to her attorney, she failed to appear.

2
  These filings may have been prompted by actions in New York by the New York State Office of Children and
Family Services, specifically the Child Abuse and Maltreatment Register. On February 1, 2011, Grant received a
letter informing him he was named as “another person . . . in a report of suspected child abuse or maltreatment” on
January 26, 2011. On February 15, 2011, Grant was advised that an investigation found credible evidence to
support the determination that maltreatment or abuse has occurred; however, he was determined “not to be
responsible” for causing alleged injury, abuse or maltreatment, or of allowing such injury. The grandparents of the
minor child’s half-brother reported that Pike Grant neglected their grandson and Grant’s son, leaving them
unattended, despite the fact that the boys were four and two-years-old respectively. The grandparents reported that
Pike Grant, who recently gave birth to a daughter, wanted the grandparents to take the boys, which they often did,
but did not want official custody orders, fearing she would lose her benefits.

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       On June 27, 2011, Grant filed a motion to set the case for a non-jury trial on September

27, 2011. The trial court signed an order granting the motion and setting the case for trial on

September 27, 2011. A letter from the trial court’s coordinator, dated August 29, 2011, was sent

to the attorneys of record, including Pike Grant’s attorney, Black, enclosing the order and

advising them of the trial setting.

       Simultaneously with the issuance of the order and letter, Pike Grant’s attorney filed a

motion to withdraw. The certificate of service states the motion was served in accordance with

the Texas Rules of Civil Procedure on August 29, 2011; the motion is file-stamped by the district

clerk’s office on August 30, 2011. The letter that accompanied the motion shows the motion was

served on Pike Grant by certified mail, return receipt requested and first class mail. The motion

to withdraw advised Pike Grant there were “no pending settings or deadlines.” Clearly, Black

had not yet received the trial court’s August 29, 2011 order setting the matter for trial. The trial

court never signed an order with regard to Black’s motion to withdraw; rather, the record

establishes the order was returned “unsigned.”

       On August 31, 2011, Black sent a letter to the court coordinator in which he explained

that he received the notice setting the case for trial on September 27, 2011, but that he had

received it after he filed the motion to withdraw. He then advised the court he had other settings

on that day that would “preclude my ability to be there in your court at 11:00 a.m.” He then

asked if a hearing on his motion to withdraw was required and stated that although he sent a copy

of the motion to Pike Grant, he had not heard from her in over a year.

       On September 15, 2011, Grant filed a motion to appear by telephone at the September 27,

2011 trial, explaining the Air Force reassigned him to a new base in the north, and it would be

expensive and difficult for him to return to Texas for the hearing. He specifically explained it

would be difficult to make arrangements for child care. The trial court granted the motion.
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       On September 27, 2011, the court called the case for trial. The reporter’s record reflects

Grant appeared telephonically and his attorney appeared in person. Neither Pike Grant nor her

attorney appeared. At the beginning of the hearing, Grant’s attorney explained the history of the

case to the trial judge, who was not the judge who had originally dealt with this matter. This

included explaining to the trial judge that Pike Grant’s attorney had filed a motion to withdraw

because he had not been in contact with her for more than a year. Grant advised the court he had

spoken to Pike Grant, telling her she needed to contact her attorney about the trial, but she

advised him “she doesn’t have a lawyer in Texas.”

       The trial court inquired about whether Pike Grant had notice of the hearing, noting that in

his motion to withdraw, her attorney advised her there were no pending settings or deadlines.

Grant’s attorney responded, stating his office “sent [Pike Grant] copies of the notice for today by

regular mail.” The attorney admitted he never received a response from Pike Grant, and he

further admitted there was nothing in the court’s file to establish what he sent to her. The trial

court was concerned about the lack of notice and suggested they call Black and ask “if he

provided her with notice.” The reporter’s record reflects a call was made to Black’s office, but

Black was not available. Grant testified during the hearing that he told Pike Grant about the

hearing, but she responded that she had no attorney and “it wasn’t her business.”

       After the trial court swore Grant in as a witness, Grant’s attorney established through

Grant residency for purposes of jurisdiction and that the couple had one child during the

marriage. Grant testified he and Pike Grant reached an agreement with regard to their marital

property and debts, and it was fair and equitable. But, Grant testified he and Pike Grant had not

reached an agreement with regard to “conservatorship, possession and support” of the minor

child. Grant requested he be appointed sole managing conservator of the minor child and Pike

Grant be awarded standard visitation, just as the trial court did in the temporary orders. Grant
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advised that the temporary orders giving him sole managing conservatorship were based on an

active investigation in New York regarding possible neglect or abuse of the child by Pike Grant.

Grant stated it would be in the child’s best interest to name him sole managing conservator.

           Thereafter, Grant’s attorney showed him a proposed final decree of divorce, which Grant

testified he recognized and had reviewed. Grant stated the document contained a division of

property and an award of conservatorship in accord with his testimony. Grant testified he was

asking the court to approve the proposed final decree of divorce.

           On November 29, 2011, the trial court signed the final decree of divorce. The decree

states that matter was heard on November 29, 2011, and all parties appeared in person with their

counsel. In the decree, the trial court granted the divorce, divided the marital estate, and

determined conservatorship and access. On May 22, 2012, having missed the deadline for filing

a standard notice of appeal, Pike Grant filed a notice of restricted appeal.

                                                         ANALYSIS

           On appeal, Pike Grant raises three issues contesting the default judgment. 3 She first

contends the default judgment should be set aside because she did not receive notice of the final

hearing. She next argues the judgment should be set aside because the trial court granted Grant

relief that was unsupported by his pleadings. Finally, she contends the evidence is legally and

factually insufficient to support the portion of the final decree that requires her to pay child

support beginning April 26, 2011.

           As noted above, this is a restricted appeal. Accordingly, before we review any of Pike

Grant’s substantive complaints, we must determine if she has met the required elements for a

restricted appeal, which are jurisdictional.



3
    Grant did not file a brief in response to the brief filed by Pike Grant.

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                                                                                     04-12-00315-CV


        To bring a restricted appeal, Pike Grant must show: (1) she filed a notice of restricted

appeal within six months after the judgment was signed; (2) she was a party to the underlying

suit; (3) she did not participate in the hearing that resulted in the judgment complained of, and

did not timely file any postjudgment motions or a request for findings of fact and conclusions of

law; and (4) error is apparent on the face of the record. See Ins. Co. of State of Penn. v. Lejeune,

297 S.W.3d 254, 255 (Tex. 2009) (citing Alexander v. Lynda’s Boutique, 134 S.W.3d 845, 848

(Tex. 2004)); In re B.H.B., 336 S.W.3d 303, 305 (Tex. App.—San Antonio 2010, pet. denied);

see also TEX. R. APP. P. 26.1(c) (stating that in restricted appeal, notice of appeal must be filed

within six months of date judgment or order is signed); TEX. R. APP. P. 30 (stating that party who

did not participate in hearing that resulted in judgment complained of and who did not timely file

postjudgment motions, request for findings of fact and conclusions of law, or notice of appeal,

may file restricted appeal). Each element of a restricted appeal is mandatory and jurisdictional.

Ibarra v. City of Laredo, No. 04-11-00035-CV, 2012 WL 3025709, *4 (Tex. App.—San Antonio

July 25, 2012, pet. denied) (citing Serna v. Webster, 908 S.W.2d 487, 491 (Tex. App.—San

Antonio 1995, no writ)).

        We hold Pike Grant has not established she did not participate in the hearing “that

resulted in the judgment complained of.” See TEX. R. APP. P. 30. Pike Grant contends she did

not participate in the September 27, 2011 hearing, and presumes this is the hearing that resulted

in the final judgment. However, the record establishes this was not the hearing that resulted in

the final decree of divorce, and further shows Pike Grant participated in the hearing that did

result in the final decree.

        In the final judgment, which was signed on November 29, 2011, the trial court recites, in

pertinent part:



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                                                                                          04-12-00315-CV


       On 11/29, 2011, the Court heard this case.

       Appearances

               Petitioner, Jeffrey Alan Grant, appeared in person and through attorney of
       record, Jacques L. De La Mota, and announced ready for trial.

             Respondent, Dakota Snow Pike Grant, appeared in person and
       through attorney of record, David B. Black, and announced ready for trial.

(bolding added). Clearly, the judgment recites that a hearing was held on November 29, 2011,

and Pike Grant appeared, as did her attorney.

       Recitals in a judgment are presumed true, and this presumption is only rebutted where

there is a conflict in the record. Alcantar v. Oklahoma Nat’l Bank, 47 S.W.3d 815, 823 (Tex.

App.—Fort Worth 2001, no pet.); F.S. New Products, Inc. v. Strong Indus., Inc., 129 S.W.3d

606, 629 (Tex. App.—Houston [1st Dist.] 2004), rev’d on other grounds, Tesco Am., Inc. v.

Strong Industries, Inc., 221 S.W.3d 550 (Tex. 2006); MJR Fin., Inc. v. Marshall, 840 S.W.2d 5,

9 (Tex. App.—Dallas 1992, no writ). Here there is no conflict, other than Pike Grant’s bare

assertion in her notice of restricted appeal that she did not appear or participate in the November

29, 2011 hearing. Rather, that a hearing was held on November 29, 2011, and Pike Grant

appeared at the hearing is supported not only by the recitals in the judgment, but by the trial

court’s statements at the conclusion of the September 27, 2011 hearing. In those statements, the

trial court expressed its concern that Pike Grant did not appear and stated it would not sign the

final decree until she appeared or the court determined she had no desire to appear:

       . . . if, in fact, she has no desire to come . . . and they represent that in a letter that
       they forward to the Court, then I’ll go ahead and sign the divorce decree.

              If by some odd reason she says, [“]Hey, . . I want to be back in Del Rio to
       hash this out,[”] she would have the right to do that . . .

       Clearly, the trial court intended to wait to sign the decree until either Pike Grant appeared

or provided written proof that she did not intend to appear. There is nothing in the record to
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establish Pike Grant waived her rights to appear, and the trial court did not, according to the

judgment, sign the final decree until some two months later, when it recited that Pike Grant

appeared. Thus, based on the face of the record, we hold Pike Grant appeared and participated in

the November 29, 2011 hearing that led to the entry of the final decree of divorce, which is the

subject of this appeal.

       Because the non-participation requirement is mandatory and jurisdictional in this

restricted appeal, and because Pike Grant failed to establish she did not participate in the hearing

that resulted in the judgment complained of, she is not entitled to relief, and the appeal must be

dismissed for want of jurisdiction. Ibarra, 2012 WL 3024709, at *5 (citing Dillard v. Patel, 809

S.W.2d 509, 512 (Tex. App.—San Antonio 1991, writ denied)).

                                           CONCLUSION

       Based on the foregoing, we hold Pike Grant failed to prove she did not participate in the

hearing that resulted in the judgment about which she complains, and in fact, the face of the

record establishes she did participate.       Accordingly, because lack of participation is a

jurisdictional requirement for review by restricted appeal, and Pike Grant has failed to establish

this element, we dismiss this appeal for want of jurisdiction.




                                                  Marialyn Barnard, Justice




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