Opinion issued October 11, 2012




                                     In The

                              Court of Appeals
                                    For The

                         First District of Texas
                           ————————————
                              NO. 01-11-00798-CV
                           ———————————
                       CAROLINE BEARD, Appellant
                                       V.
                      MIGUEL URIOSTEGUI, Appellee



                   On Appeal from the 311th District Court
                            Harris County, Texas
                      Trial Court Case No. 2005-78194



                                 OPINION

      Caroline Beard challenges the trial court’s default judgment on restricted

appeal. The trial court granted Miguel Uriostegui’s petition to modify custody and

child support with regard to one of Beard’s and Uriostegui’s children. Beard
argues that the letter she sent to the trial court in response to service of Uriostegui’s

petition should be considered an answer, entitling her to notice of the trial.

Because she was not given notice, she complains that the trial court erred in

granting a default judgment. We agree. Accordingly, we reverse the trial court’s

judgment and remand for further proceedings.

                                  BACKGROUND

      Beard and Uriostegui were married for ten years and had two children, a

daughter and a son. Beard filed for divorce in 2005, and the parties’ divorce was

finalized in April 2006.      The Final Decree of Divorce appointed Beard and

Uriostegui as joint managing conservators of the children, and Beard was given the

exclusive right to establish the residence for both children.

      A. Uriostegui’s Petition to Modify Custody and Support

      In September 2010, Uriostegui filed an Original Petition to Modify with

respect to his son, G.U. Uriostegui’s petition alleged that Beard had voluntarily

allowed G.U. to live with Uriostegui full-time for more than six months. He

requested that he be granted the exclusive right to designate G.U.’s primary

residence. He also requested that Beard be ordered to pay support for G.U.,

beginning at the date of service of the petition to modify, and that Beard be ordered

to pay Uriostegui’s attorney’s fees.




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      Beard was served a copy of Uriostegui’s petition on September 23rd, 2010.

The return of service was filed with the court on September 24th, 2010.

      B. Beard’s Response

      Beard sent an October 5, 2010 letter to the trial court via certified mail. In

that letter Beard identified the case number, the style of the case, the parties, and

stated the following:

            I Caroline Beard, former name of Caroline Uriostegui, wish not
      to contest this suit against me. I do this not because I don’t wish to
      have custody of my son like I have had for the past 4 ½ years, but
      because the lawyer and court fees would outweigh the child support
      gained in the issue. Including the lost wages from the court and
      lawyer visits it would be contradictory to me and my finances which
      is what this case is all about.
             I would like the court to be aware that there is also another
      child that is a part of this divorce: [G.U.2], my 6 yr old daughter.
      Miguel was not involved in my children’s lives and does not see his
      daughter [G.U.2.]. He only started seeing [G.U.2] last year. She just
      started kindergarten and goes to after school care for $200 a month.
      My son [G.U.] is also on Vyvanse an ADHD medication that he takes
      daily for $186 a month. I know his father Miguel won’t buy him his
      medications that he needs because he thinks that the doctor that
      diagnosed him does not know what he is doing and [G.U.] does not
      need it. My children don’t have health insurance, their father Miguel
      is supposed to provide that for them as stated in the divorce decree but
      does not. The family insurance through my job is very costly, and
      unaffordable for me at this moment, therefore [G.U.] expects me to
      get them for him every month.
             I would also like the court to be aware of the fact that there was
      a restraining order against Miguel for the protection of the children
      [G.U.], and [G.U.2] and myself that has probably expired now but that
      I got for our own protection against this temperamental, abusive and
      vindictive man.


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             Miguel Uriostegui owes me back child support since he has not
      consecutively paid the child support all these years and every time he
      leaves a job and finds another it takes a long time before he is found
      and I start getting it again. I will bring all the according records to
      support all the above facts with me to court when this case is settled in
      court.
             I would like to let you know that I also have my two other
      children living with me [C.G.] and [M.G.].
            I wish and pray the court asses[s] all of the above facts and
      judges accordingly.

      C. The Hearing

      Uriostegui’s petition was heard on March 23, 3011, before a visiting judge.

Beard was not given notice of the trial. The visiting judge made note on the docket

sheet that there was a letter on file that Beard did “wish not to contest this suit.”

      Uriostegui testified that G.U. had been living with him for more than six

months, was thriving, and that modifying the original divorce decree to permit him

to establish G.U.’s residence was in G.U.’s best interest. Uriostegui also testified

that although he does not have any information about Beard’s income, based on his

attorneys’ and his Internet research about potential salaries for her job at an

ophthalmology office, he is proposing that Beard pay $730 per month in child

support for G.U. He requested that payment be ordered retroactively to the date of

service of the petition to modify.

      The visiting judge stopped the hearing at this point, telling Uriostegui’s

counsel that “[e]verything else is good up until the child support,” but expressing


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the view that “there is no evidence of that.” He stated he would not approve the

child support request, but that Uriostegui’s counsel could take it up with the

presiding judge. No exhibits were admitted and no other testimony or evidence

appears on the record.

      D. The Judgment

      On the same day, the presiding judge signed an Agreed Order in Suit to

Modify the Parent-Child Relationship. The order states that “Respondent, Caroline

Uriostegui, although duty noted and cited to appear wholly failed to file an answer

or otherwise enter an appearance         Accordingly, Respondent has wholly made

default.” Among other things, the order awarded custody of G.U. to Uriostegui,

established Beard’s visitation schedule, directed Beard to pay $730 per month for

G.U.’s support, and awarded to Uriostegui from Beard $3,650 in retroactive child

support.

                                    THIS APPEAL

      Beard brought this restricted appeal, arguing in one issue that “[t]he trial

court should have treated the letter from Appellant as an answer and not allowed

the hearing to proceed without proof of notice of hearing being provided to

Appellant.”1




1
      Appellee Uriostegui did not file a brief here.
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   A. Restricted Appeal

      In restricted appeal cases, the Appellant must establish that he or she

(1) filed notice of the restricted appeal within six months after the judgment was

signed; (2) was a party to the underlying lawsuit; (3) did not participate in the

hearing that resulted in the judgment complained of and did not file any post-

judgment motions or requests for findings of fact and conclusions of law; and (4)

that there is error apparent on the face of the record. Transamerica Occidental Life

Ins. Co. v. Rapid Settlements, Ltd., 284 S.W.3d 385, 390 (Tex. App.—Houston [1st

Dist.] 2008, no pet.); TEX. R. APP. P. 30. Beard filed notice of the restricted appeal

within six months after the judgment was signed and is a party to the underlying

lawsuit. She did not file any post-judgment motions or requests for findings of fact

and conclusions of law. The sole issue, therefore, is whether or not error is

apparent on the face of the record.

   B. Default Judgment

      Generally, a plaintiff may take a default judgment against a defendant who

fails to file an answer. See TEX. R. CIV. P. 239. A defendant who fails to answer or

appear is not entitled to notice of a hearing on the default judgment. Wilson v.

Wilson, 132 S.W.3d 533, 536 (Tex. App.—Houston [1st Dist.] 2004, pet. denied).

A defendant who makes an appearance in the case, however, is entitled under the

due process clause to notice of a trial on the merits or a hearing on a motion for

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default judgment. LBL Oil Co. v. Int’l Power Servs., Inc., 777 S.W.2d 390, 390–

91 (Tex. 1989); In re Marriage of Runberg, 159 S.W.3d 194, 197 (Tex. App.—

Amarillo 2005, no pet.).

      Beard argues that her letter to the trial court should have been construed as

an answer, rendering the granting of a default judgment error. She points out that

her letter “identified the parties and the case number” and that while Beard stated

in the letter that she “wish[es] not to contest this suit against me,” she gave a clear

indication that she intended to be present at any hearing by further stating that she

“will bring all the according records to support all of the above facts with me to

court when the case is settled in court.” She notes that the trial court was clearly

aware of the letter, as it made reference to it on the docket sheet. According to

Beard, her letter—taken as a whole—“was an answer, not a waiver” and the trial

court’s failure to treat it as such violated the rule that pleadings be construed

liberally absent special exceptions. We agree.

      In Smith v. Lippmann, the supreme court held that “a defendant, who timely

files a pro se answer by a signed letter that identifies the parties, the case, and the

defendant’s current address, has sufficiently appeared by answer and deserves

notice of any subsequent proceedings in the case.”       826 S.W.2d 137, 138 (Tex.

1992). This Court has clarified that if the Lippmann criteria are otherwise met, the

defendant’s current address need not be set forth in the body of the defendant’s

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letter; it is enough if, as in this case, “the envelope [bearing a return address]

accompanies the letter and is filed by the clerk.” Harris v. Harris, 850 S.W.2d

241, 242–43 (Tex. App.—Houston [1st Dist.] 1993, no pet.).

      Beard sent a signed letter to the trial court identifying the parties, the case

number, the style of the case, and the issues in the case. Her letter did not contain

her current address in the body of the letter, but the envelope containing her letter

had a return address and was filed by the court. A fair reading of her letter reflects

that, for financial reasons, she did not intend to resist Uiostegui’s request for

custody of G.U., but that, at a minimum, she planned to present evidence related to

Uriostegui’s alleged failure to meet his financial obligations to her. This “letter

was a sufficient pro se answer pursuant to prevailing case law and common sense.”

Id. at 243. The trial court’s treatment of the letter as her acquiescence in all the

relief sought by Uriostegui was error.

                                  CONCLUSION

      We reverse the trial court’s default judgment and remand the case to the trial

court for a new trial.



                                              Sherry Radack
                                              Chief Justice

Panel consists of Chief Justice Radack and Justices Bland and Huddle.



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