Opinion issued October 4, 2016




                                        In The

                                Court of Appeals
                                       For The

                           First District of Texas
                              ————————————
                                NO. 01-15-01115-CV
                             ———————————
                     VICTORIA RICHARDSON, Appellant
                                          V.
                           TARRENCE SIMS, Appellee


                    On Appeal from the 309th District Court
                             Harris County, Texas
                       Trial Court Case No. 2014-50500


                           MEMORANDUM OPINION

      Appellant Victoria Richardson, the mother of the child who is the subject of

the underlying suit, brings this restricted appeal from an order affecting the parent-

child relationship entered after she failed to appear for trial. Richardson contends

that she did not receive notice of the trial setting at which the trial court rendered a
default judgment, and therefore the judgment should be reversed and the case

remanded for a new trial. We affirm.

                                     Background

      In September 2014, Tarrence Sims, the father of the child, filed an original

petition for suit affecting the parent-child relationship. Sims’s petition asked that he

and Richardson be appointed joint managing conservators of their child, that he have

the exclusive right to designate the primary residence of the child, and that

Richardson be ordered to pay child support. He requested temporary orders with the

same terms.

      On September 24, 2014, the trial court held a hearing on the request for

temporary orders. Richardson appeared at this hearing along with Sims. The trial

court entered temporary orders appointing Sims and Richardson temporary joint

managing conservators, granting Richardson the exclusive right to designate the

child’s primary residence within Harris County or Magnolia, Texas, entering a

possession order, and ordering Sims to pay Richardson child support.

      In February 2015, Sims moved to modify the temporary orders because

Richardson had violated the orders by taking the child to Florida. The trial court

modified the orders to give Sims the exclusive right to designate the child’s primary

residence within Harris County and suspended Sims’s support obligation. The trial




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court noted in its order that Richardson had been notified of the hearing, but she

failed to appear.

      On June 8, 2015, the case was called for trial. Sims appeared with his lawyer,

but Richardson did not appear. The trial court proceeded to trial, at which Sims

testified, and thereafter the court rendered a default judgment appointing Sims and

Richardson joint managing conservators, giving Sims the exclusive right to

designate the child’s residence, ordering Richardson to pay child support, and

ordering that Richardson’s visits with the child be supervised. The judgment stated

that Richardson “has made a general appearance and was duly notified of trial but

failed to appear and defaulted.”

      Richardson filed a notice of restricted appeal within six months of the default

judgment.

                                     Discussion

      In her sole issue, Richardson contends that the face of the record shows that

her due process rights were violated because she did not receive notice of the June 8,

2015 trial setting as required by Texas Rule of Civil Procedure 245.

A.    Standard of Review

      A restricted appeal is a type of direct attack on a default judgment. TEX. R.

APP. P. 30; Barker CATV Const., Inc. v. Ampro, Inc., 989 S.W.2d 789, 792 (Tex.

App.—Houston [1st Dist.] 1999, no pet.). To prevail in a restricted appeal, the



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appellant must show that (1) she brought the appeal within six months after the trial

court signed the judgment; (2) she was a party to the suit; (3) she did not participate

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

any post-judgment motions or requests for findings of fact and conclusions of law;

and (4) error is apparent from the face of the record. See Alexander v. Lynda’s

Boutique, 134 S.W.3d 845, 848 (Tex. 2004); Invesco Inv. Servs., Inc. v. Fidelity

Deposit & Disc. Bank, 355 S.W.3d 257, 259 (Tex. App.—Houston [1st Dist.] 2011,

no pet.). “The face of the record consists of all the papers on file in the appeal,

including any reporter’s record.” Invesco, 355 S.W.3d at 259. Error generally may

not be inferred from silence in the record; thus, absent affirmative proof of error, a

restricted appeal fails. See Alexander, 134 S.W.3d at 849–50.

B.    Applicable Law

      When a defendant makes an appearance in a case, such as by filing an answer,

the defendant is entitled to notice of the trial setting as a matter of due process. See

LBL Oil Co. v. Int’l Power Servs., Inc., 777 S.W.2d 390, 390–91 (Tex. 1989) (per

curiam); Custom–Crete, Inc. v. K–Bar Servs., Inc., 82 S.W.3d 655, 659 (Tex. App.—

San Antonio 2002, no pet.). Texas Rule of Civil Procedure 245 provides:

      The Court may set contested cases on written request of any party, or
      on the court’s own motion, with reasonable notice of not less than forty-
      five days to the parties of a first setting for trial, or by agreement of the
      parties; provided, however, that when a case previously has been set for
      trial, the Court may reset said contested case to a later date on any
      reasonable notice to the parties or by agreement of the parties.


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TEX. R. CIV. P. 245.

      The 45-day notice provision of Rule 245 is mandatory. Custom–Crete, 82

S.W.3d at 659; In re Marriage of Parker, 20 S.W.3d 812, 818 (Tex. App.—

Texarkana 2000, no pet.). A trial court’s failure to comply with the notice provision

of Rule 245 in a contested case “deprives a party of its constitutional right to be

present at the hearing, to voice its objections in an appropriate manner, and results

in a violation of fundamental due process.” Custom–Crete, 82 S.W.3d at 659 (citing

Blanco v. Bolanos, 20 S.W.3d 809, 811 (Tex. App.—El Paso 2000, no pet.)). Failure

to give proper notice is therefore grounds for reversal. Id.

      However, the law presumes that a trial court hears a case only after proper

notice to the parties. In re Marriage of Parker, 20 S.W.3d at 816 (citing Osborn v.

Osborn, 961 S.W.2d 408, 411 (Tex. App.—Houston [1st Dist.] 1997, writ denied).

An appellant who alleges failure to give proper notice of trial carries a heavy burden,

because the record will usually be barren of affirmative proof of this type of error.

Robert S. Wilson Inv. No. 16 Ltd. v. Blumer, 837 S.W.2d 860, 861 (Tex. App.—

Houston [1st Dist.] 1992, no writ) (citing General Elec. Co. v. Falcon Ridge Apts.,

811 S.W.2d 942, 943 (Tex. 1991)). The trial court provides the parties notice when

a contested case is set for trial, and the rules do not impose a duty on the trial court

or its personnel to include documentary evidence in the record that notice of a trial

setting was given. Garcia v. Arbor Green Owners Ass’n, 838 S.W.2d 800, 803 (Tex.



                                           5
App.—Houston [1st Dist.] 1992, writ denied); Blumer, 837 S.W.2d at 861.

Accordingly, if the record is silent as to whether notice of a trial setting was given,

no error appears on the face of the record. Garcia, 838 S.W.2d at 803; Butler v.

Butler, 808 S.W.2d 128, 129 (Tex. App.—Houston [1st Dist.] 1991, writ. denied);

see also Karagounis v. David T. Lopez & Assoc., No. 01-01-00884-CV, 2003 WL

203478, at *1 (Tex. App.—Houston [1st Dist.] Jan. 30, 2003, no pet.) (mem. op.).

      Moreover, a recitation of due notice of the trial setting in the judgment

constitutes some evidence that proper notice was given. In re Marriage of Parker,

20 S.W.3d at 816 (citing Osborn, 961 S.W.2d at 411). Because silence regarding

notice is not error on the face of the record, such a recitation must be rebutted by

other evidence in the record to rebut the presumption of proper notice. See id. (citing

Osborn, 961 S.W.2d at 411).

C.    Analysis

      The trial court’s judgment states that Richardson “was duly notified of trial,”

which is some evidence that Richardson received proper notice of the trial setting.

See id. at 816 (citing Osborn, 961 S.W.2d at 411) (recitation of due notice of trial

setting in judgment constitutes some evidence that proper notice was given). There

is no evidence in the record controverting this statement.

      Nevertheless, Richardson contends that the record “conclusively establishes”

that she did not receive proper notice because the clerk’s record does not contain a



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notice of the trial setting. She also points out that Sims did not claim—on the record

at trial—that he told Richardson about the trial setting when he spoke with her by

phone the week before trial. But neither of these things affirmatively demonstrates

that Richardson did not receive proper notice of the trial setting. The clerk’s record

does not typically contain a copy of a notice of a trial setting, and therefore, its

absence from the clerk’s record is not proof that proper notice was not provided. See

Garcia, 838 S.W.2d at 802; Blumer, 837 S.W.2d at 861.

      In short, the judgment recites that Richardson was duly notified of the trial

setting and nothing in the record affirmatively shows that she did not receive proper

notice. See Osborn, 961 S.W.2d at 411 (recitation of due notice of trial setting in

judgment constitutes some evidence that proper notice was given; law presumes that

trial court hears case only after proper notice to parties unless record shows

otherwise).   Because the face of the record does not affirmatively show that

Richardson did not receive proper notice of trial, no error appears on the face of the

record and we must affirm the default judgment. See Alexander, 134 S.W.3d at 848

(appellant in restricted appeal must affirmatively show error on face of record);

Karagounis, 2003 WL 203478, at *1 (affirming default judgment where nothing in

record affirmatively showed appellant did not receive proper notice of trial); Garcia,

838 S.W.2d at 803 (record must affirmatively show lack of proper notice, therefore

no error on face of record where record did not include notice of trial); Butler, 808



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S.W.2d at 129 (affirming default judgment where nothing in record showed

appellant did not receive proper notice of trial setting).

      We overrule Richardson’s sole issue.

                                     Conclusion

      We affirm the trial court’s judgment.




                                               Rebeca Huddle
                                               Justice

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




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