Opinion issued August 12, 2014




                                     In The

                              Court of Appeals
                                     For The

                          First District of Texas
                            ————————————
                              NO. 01-13-00547-CV
                           ———————————
                  JORDAN D. HOUGHTALING, Appellant
                                        V.
                   NICHOL A. HOUGHTALING, Appellee


                   On Appeal from the 310th District Court
                            Harris County, Texas
                      Trial Court Case No. 2012-38612


                         MEMORANDUM OPINION

      Appellee Nichol A. Houghtaling sought a divorce from appellant Jordan D.

Houghtaling. Nichol filed with the trial court a document purporting to be a waiver

of appearance executed by Jordan. At a subsequent hearing which Jordan did not

attend, the trial court entered a final decree of divorce dissolving the parties’
marriage and dividing their property. Jordan timely filed this restricted appeal,

arguing that the waiver of appearance was forged or fraudulent, that he did not

receive notice of the hearing at which the divorce decree was entered, and that the

evidence was factually and legally insufficient to support the property division

contained in the decree. Because Jordan has failed to show error on the face of the

record, we affirm.

                                   Background

      Nichol and Jordan were married, and they lived together in Texas. They had

no children. When Jordan moved to New York to live with his family, Nichol filed

for divorce. Jordan was served with process, and he wrote a letter to the court

stating that he had read the petition and “agree[d] with the dissolution of the

marriage between myself and Nichol A. Houghtaling.”

      A “Waiver of Appearance” in Jordan’s name and purporting to be signed by

him was filed with the trial court. Among other things, the waiver recited, “I waive

the making of a record of testimony in this case,” and “I agree that this case may

be taken up and considered by the Court without further notice to me.” Jordan also

attested to his mailing address and Social Security number. The waiver purports to

have been signed before a Texas notary named Carolyn Anders on December 17,

2012. The notary signed and stamped the waiver. Underneath the notary’s




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signature is printed, “Notary Public State of New York.” The printed words “New

York” are marked-out and the word “Texas” is handwritten next to them.

      On December 17, 2012, the trial court signed a final decree of divorce. It

recited that “Petitioner, Nichol A. Houghtaling, appeared in person and through

attorney . . . and announced ready,” and “Respondent, Jordan D. Houghtaling made

a general appearance and signed a waiver consenting that the case could be

considered by the Court without further notice.” The final decree further stated,

“The making of a record of testimony was made by the 310th Judicial District

Court’s court reporter.” But the typed words “made by the 310th Judicial District

Court’s court reporter” are crossed-through, and the words “waived by the parties

with consent of the court” are written in pen. The decree divided the marital estate;

in the main, it awarded property in the possession of a spouse to that spouse and

property titled in the name of a spouse to that spouse. However, the decree

awarded Nichol possession of a Goldendoodle named Barkley, and it ordered

Jordan to surrender the dog to Nichol upon request. In his appellate filings, Jordan

has claimed that Barkley the dog is his separate property.

      The following summer, Nichol sought enforcement of the Texas divorce

decree in New York, where Jordan was living with his parents, in order to take

possession of Barkley. In response, Jordan filed this restricted appeal, postmarked

June 18, 2013 and received by the district clerk on June 20, seeking to set aside the



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Texas divorce decree. Arguing that the restricted appeal was not timely filed,

Nichol filed a motion to dismiss, which this court denied in a prior order.

                                      Analysis

      “A party who did not participate—either in person or through counsel—in

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

a postjudgment motion or request for findings of fact and conclusions of law, or a

notice of appeal within the time permitted by Rule 26.1(a), may file a notice of

appeal within the time permitted by Rule 26.1(c).” TEX. R. APP. P. 30. A restricted

appeal is considered a direct attack on a judgment. See Gen. Elec. Co. v. Falcon

Ridge Apartments, Joint Venture, 811 S.W.2d 942, 943 (Tex. 1991).

      To prevail on a restricted appeal, an appellant must establish that: (1) it filed

notice of the restricted appeal within six months after the judgment was signed;

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

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

postjudgment motions or requests for findings of fact and conclusions of law; and

(4) error is apparent on the face of the record. Alexander v. Lynda’s Boutique, 134

S.W.3d 845, 848 (Tex. 2004).

      A restricted appeal affords an appellant the same scope of review as an

ordinary appeal, with the exception that error must appear on the face of the

record. See Norman Commc’ns v. Tex. Eastman Co., 955 S.W.2d 269, 270 (Tex.



                                          4
1997) (per curiam). “As in any other appeal, the appellate court does not take

testimony or receive evidence.” Fid. & Guar. Ins. Co. v. Drewery Constr. Co., 186

S.W.3d 571, 573 (Tex. 2006) (per curiam). Accordingly, evidence not before the

trial court prior to final judgment may not be considered. See Falcon Ridge, 811

S.W.2d at 944. “When extrinsic evidence is necessary to challenge a judgment, the

appropriate remedy is by motion for new trial or by bill of review filed in the trial

court so that the trial court has the opportunity to consider and weigh factual

evidence.” Ginn v. Forrester, 282 S.W.3d 430, 432 (Tex. 2009) (per curiam). For

instance, affidavits filed for the first time in the appellate court are extrinsic

evidence that will not support a restricted appeal. Id. Furthermore, silence is not

enough to constitute error on the face of the record. Id. at 433.

I.    Error on the face of the record

      In his first appellate issue, Jordan argues that (1) the waiver of appearance

filed in the trial court should be regarded as a waiver of citation, because the Rules

of Civil Procedure do not provide for waivers of appearance; (2) a waiver of

citation requires a proper notarization; and (3) the notarization on the waiver in this

case is fraudulent.

      In his second issue, Jordan argues that the waiver of appearance fails to meet

the requirements for a waiver of service specified in the Family Code. See TEX.

FAM. CODE ANN. § 6.4035 (West Supp. 2013). The Family Code section Jordan



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relies upon requires waivers within its scope to “be sworn before a notary public

who is not an attorney in the suit.” Id. § 6.4035(c). Jordan alleges for the first time

on appeal that the person who notarized the waiver, Carolyn Anders, was the

employee of one of Nichol’s attorneys in the divorce proceedings.

      In his third issue, Jordan contends that the divorce decree must be set aside

because “the lower Court was deceived into signing a final order based on a

fraudulent document [the waiver of appearance] filed by the Appellee.” In his

fourth appellate issue, Jordan argues that he was denied due process because he did

not receive notice of the December 17 hearing at which the trial court entered the

final divorce decree.

      Jordan’s issues share a common defect in the context of this restricted

appeal: the errors alleged are not apparent on the face of the record. See Lynda’s

Boutique, 134 S.W.3d at 848. The evidence of fraud and misconduct that Jordan

identifies in his brief consists solely of evidence initially introduced in this appeal,

evidence that was not before the trial court at the time it entered judgment. For

example, Jordan contends that he was in New York on the day the waiver purports

to have been notarized and offers his affidavit and the affidavits of his family and

employer in support of his claims. Jordan made these allegations and adduced this

evidence for the first time as part of his appeal. As this material was not before the

trial court at the time it entered judgment, it cannot form the basis of a restricted



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appeal. See Falcon Ridge, 811 S.W.2d at 944. Similarly, there is nothing in the

record that was before the trial court to indicate that Anders was an employee of

one of Nichol’s attorneys. On its face and in the context of the rest of the trial

record at the time the final divorce decree was entered, the waiver of appearance is

regular and proper. See Norman Commc’ns, 955 S.W.2d at 270.

      Jordan argues that “the alteration on the face of the document where ‘New

York’ was crossed out and ‘Texas’ inserted, together with the fact that there was

no initialing to the alteration by the Appellant,” are evidence of fraud on the face

of the record. However, judged by itself, the removal of the words “New York”

and their replacement with the word “Texas” without adjacent initialing is no proof

that the attestation of the notary was false.

      Jordan’s claim that he did not receive notice of the December 17 hearing is

also unsupported on the face of the record. There is nothing in the record before

the trial court at the time of the divorce decree that shows Jordan did not receive

notice. While it is also true that there is nothing in the record that shows Jordan did

receive notice, silence is insufficient to show error on the face of the record. Ginn,

282 S.W.3d at 433. “[W]hen the record does not reflect whether notice was sent,

this is insufficient to establish reversible error in a restricted appeal proceeding.”

Lynda’s Boutique, 134 S.W.3d at 850.




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      As Jordan has failed to identify error apparent on the face of the record, his

first four issues are overruled.

II.   Sufficiency of the evidence

      In his fifth issue, Jordan contends that the evidence is legally and factually

insufficient to support the decree of divorce. He argues that the waiver of

appearance is “a false document not purporting to be what is alleged[,] is

incompetent evidence, and inadmissible.” He also argues that no evidence was

presented regarding the nature and value of the property divided by the trial court

and that therefore the court abused its discretion in dividing the property.

      The waiver of appearance is not evidence of a fact at issue in the case and a

legal or factual insufficiency challenge to it is therefore misplaced. See City of

Keller v. Wilson, 168 S.W.3d 802, 810 (Tex. 2005) (legal sufficiency attacks

concern state of evidence in regards to a “vital fact”); Dow Chem. Co. v. Francis,

46 S.W.3d 237, 242 (Tex. 2001) (factual sufficiency challenge concerns whether

“finding is so against the great weight and preponderance of the evidence that it is

clearly wrong and unjust”).

      Regarding the court’s division of property, “In a decree of divorce or

annulment, the court shall order a division of the estate of the parties in a manner

that the court deems just and right, having due regard for the rights of each party

and any children of the marriage.” TEX. FAM. CODE ANN. § 7.001 (West 2006).



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“The standard of review for property division issues in family law cases is abuse of

discretion.” Wilson v. Wilson, 132 S.W.3d 533, 536 (Tex. App.—Houston [1st

Dist.] 2004, pet. denied) (citing Schlueter v. Schlueter, 975 S.W.2d 584, 589 (Tex.

1998)). “A trial court has broad discretion in dividing the ‘estate of the parties,’ but

must confine itself to community property.” Id. (citing Eggemeyer v. Eggemeyer,

554 S.W.2d 137, 139 (Tex. 1977)). “If the division of marital property lacks

sufficient evidence in the record to support it, then the trial court’s division is an

abuse of discretion.” Id. at 537.

      In this case, there is no reporter’s record of the hearing at which the trial

court entered the final decree of divorce. As interlineated, the decree recites, “The

making of a record of testimony was waived by the parties with consent of the

court.” Jordan argues that the absence of a record of testimony entails that there is

no evidence that the division of property by the trial court was just and right.

Relying on Wilson, he argues that the decree must be reversed and the case

remanded for a new trial.

      In Wilson, a wife sued her husband for divorce. 132 S.W.3d at 534. The

husband never filed an answer. Id. A default judgment hearing was held at which

the wife was the sole witness, and no exhibits were admitted into evidence. Id. The

husband brought a restricted appeal in which he challenged the sufficiency of

evidence to support the division of property. Id. at 536. Finding the testimony of



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the wife at the hearing “sparse and inconsistent,” the court held: “Given the dearth

of evidence identifying, describing, and valuing the community estate, we hold that

there is insufficient evidence to support the division of assets.” Id. at 537–38.

      Wilson is distinguishable from the facts of this case. Wilson involved a no-

answer default judgment in which the husband did not appear in the trial court

prior to filing restricted appeal. See id. at 534–36. Unlike this case, in Wilson there

was no waiver of appearance and no waiver of a record of testimony. See id. On

the contrary, the Wilson court considered the record testimony and found it

lacking. See id. at 537–38.

      Previous cases in which this court held that the absence of a record of

testimony is reversible error in a restricted appeal did not involve a waiver of

appearance and a waiver of the making of a record by the appellant. See, e.g.,

Chase Bank of Tex., N.A. v. Harris Cnty. Water Control & Improvement Dist. No.

109, 36 S.W.3d 654, 655–56 (Tex. App.—Houston [1st Dist.] 2000, no pet.).

While the Supreme Court of Texas has held that if an appellant “is unable to obtain

a proper record of the evidence introduced, this may require a new trial where his

right to have the case reviewed on appeal can be preserved in no other way,” the

appellant must have “exercise[d] due diligence” and found himself unable to obtain

a record “through no fault of his own.” Robinson v. Robinson, 487 S.W.2d 713,

715 (Tex. 1972).



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      On the face of this record, Jordan’s inability to obtain a record of the

evidence introduced is at least partially his fault, because he had signed a waiver of

appearance in which he “waive[d] the making of a record of testimony in this case”

and “agree[d] that this case may be taken up and considered by the Court without

further notice to me.” See Givens v. Givens, 616 S.W.2d 450, 451 (Tex. Civ.

App.—Houston [14th Dist.] 1981, no writ) (“Appellant is unable to show that the

absence of a record in this case is not the result of her own negligence or lack of

due diligence. To the contrary, it is undisputed that she signed a Waiver of the

Record.”). In reliance on the waiver, the court included in the final decree of

divorce a recital that Jordan “made a general appearance and signed a waiver

consenting that the case could be considered by the Court without further notice”

and a recital that the “making of a record of testimony was waived by the parties

with consent of the court.”

      This court has recognized that a party “may waive the making of a record by

express written agreement, or by not objecting to the lack of record during the

hearing.” O’Connell v. O’Connell, 661 S.W.2d 261, 263 (Tex. App.—Houston [1st

Dist.] 1983, no writ); see also McLamore v. McLamore, 750 S.W.2d 805, 806

(Tex. App.—El Paso 1988, no writ) (“Where a party has signed a waiver of the

making of a record she may not complain that such waiver is not binding upon

her.”). Given that the record in this case contains a waiver by Jordan of the making



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of a record of testimony, it was not error for the trial court to hold the hearing

without the services of a court reporter. See McLamore, 750 S.W.2d at 806;

O’Connell, 661 S.W.2d at 263; Givens, 616 S.W.2d at 451. Because silence is

inadequate to show error on the face of the record, we will not presume that

whatever evidence was presented at the hearing was insufficient to support the trial

court’s division of property. See Ginn, 282 S.W.3d at 433. Jordan’s fifth issue is

overruled.

                                   Conclusion

      We affirm the judgment of the trial court.



                                             Michael Massengale
                                             Justice

Panel consists of Justices Jennings, Bland, and Massengale.




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