                                    NO. 07-03-0078-CV

                              IN THE COURT OF APPEALS

                       FOR THE SEVENTH DISTRICT OF TEXAS

                                      AT AMARILLO

                                         PANEL C

                                 NOVEMBER 4, 2004
                          ______________________________

        IN THE MATTER OF THE MARRIAGE OF ARACELIA RODRIQUEZ
      AND DAVID GONZALES MARTINEZ AND IN THE INTEREST OF AARON
      MICHAEL MARTINEZ AND ALEXANDRA ANNE MARTINEZ, CHILDREN

                        _________________________________

               FROM THE 154TH DISTRICT COURT OF LAMB COUNTY;

                      NO. 15,834; HON. FELIX KLEIN, PRESIDING
                        _______________________________

                                      Opinion
                          _______________________________

Before JOHNSON, C.J., and QUINN and REAVIS, JJ.

       David Gonzales Martinez, who is incarcerated in prison, appeals from a divorce

decree. Through the decree, the trial court appointed Martinez’ common law wife, Aracelia

Rodriquez, sole managing conservator and changed the last names of their two minor

children. Several issues are before us. Yet, we address only the first since it is dispositive

of the appeal. Through it, Martinez argues that the trial court erred in denying his motion

for new trial since he was denied notice of the trial setting as required by due process and

Texas Rule of Civil Procedure 245. We reverse the judgment of the trial court.
                     Issue One -- New Trial Due to Lack of Notice

       As previously mentioned, Martinez asserts that he should have been granted a new

trial because the trial court did not afford him appropriate notice of the hearing. We sustain

the issue.

       The first time a contested case is set for trial, the litigants must be afforded at least

45 days prior notice of the date, unless the parties agree otherwise. TEX . R. CIV. P. 245.

But, because it is presumed that a trial court hears a case only after appropriate notice has

been given, the obligation lies with the complainant to affirmatively illustrate the lack of

notice or compliance with Rule 245. Campsey v. Campsey, 111 S.W.3d 767, 771-72 (Tex.

App.–Fort Worth 2003, no pet.); Blanco v. Bolanos, 20 S.W.3d 809, 811 (Tex. App.–El

Paso 2000, no pet.).

       Here, the reporter’s record establishes that the trial occurred on October 28, 2002.

Furthermore, the trial court signed the notice setting the trial for that date on September

19, 2002. Given this, Martinez was afforded only 39 days prior notice of the hearing, as

opposed to the 45 days mandated by Rule 245. Furthermore, no one contends that the

October 28th setting was anything other than the first for this proceeding or that the parties

agreed to that date. Nor does the appellate record depict otherwise.

       Additionally, Martinez had filed an answer and counterclaim to his wife’s petition (on

August 27, 2002) and not only sought joint conservatorship of the children but also asked

that the children’s names be left unchanged. Thus, it can be said that the proceeding was

contested.




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       So too did he aver in an unsworn declaration attached to his motion for new trial that

he 1) was not provided with notice of the hearing before October 28th and 2) first became

aware of the trial date only after receiving a copy of the final judgment from opposing

counsel. Denying receipt of notice rebuts the presumption that due notice was afforded

the litigant. Smith v. Holmes, 53 S.W.3d 815, 818 (Tex. App.–Austin 2001, no pet.). And,

when coupled with the 39-day period between the day the trial court set the cause for trial

and the day trial occurred, we cannot but hold that the trial court abused its discretion in

denying the motion for new trial. Smith v. Levine, 911 S.W.2d 427, 433 (Tex. App.–San

Antonio 1995, writ denied) (holding that the decision to grant or deny a motion for new trial

lies within the discretion of the trial court).

       Accordingly, the divorce decree is reversed, and the cause is remanded for further

proceedings.



                                                      Per Curiam




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