                         COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH

                              NO. 02-14-00363-CV


ROCKY F. ANDERSON                                                     APPELLANT

                                        V.

CHRISTINA S. ANDERSON                                                  APPELLEE


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          FROM THE 16TH DISTRICT COURT OF DENTON COUNTY
                     TRIAL COURT NO. 14-04599-16

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                         MEMORANDUM OPINION1

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      Appellant Rocky F. Anderson brought a restricted appeal.            Appellee

Christina S. Anderson filed a motion in which she asserted this court lacked

jurisdiction because Appellant participated at the hearing that resulted in the

divorce judgment. After considering Appellee’s motion and Appellant’s response

thereto, we grant her motion and dismiss the appeal for want of jurisdiction.

      1
       See Tex. R. App. P. 47.4.
                                   Background

      Appellee filed a petition for divorce, and Appellant responded by filing a

“Waiver of Service.” Within the waiver, Appellant wrote: “I request the Court not

to enter any orders or judgment not signed by me or without my receiving prior

written notice of the date, time, and place of any proceedings.”

      Thereafter, Appellee appeared for a prove-up hearing and presented an

“Agreed Final Decree of Divorce.”      Neither Appellant nor an attorney on his

behalf appeared. However, the last page of the “Agreed Final Decree of Divorce”

contains the following:

      APPROVED AND CONSENTED TO AS TO BOTH FORM AND
      SUBSTANCE:

      /S/ Christina S. Anderson
      Petitioner, Christina S. Anderson

      /S/ Rocky F. Anderson
      Respondent, Rocky F. Anderson

      During the prove-up hearing, Appellee and the trial judge engaged in the

following dialogue:

      THE COURT: Okay. I do note that Mr. Anderson has filed a waiver
      with the Court indicating that he does – that the Court has not
      entered any judgments or orders not signed by him.

      Let me ask you, ma’am, on the last page of this document there’s a
      signature line that says Respondent, Rocky F. Anderson.

      Is that his signature as you know it to be?

      THE WITNESS: Yes, ma’am.

      THE COURT: Mr. Anderson wasn’t represented by anyone?

                                          2
      MS. MUELLER: That’s right.

      THE COURT: I have reviewed the decree and heard the testimony
      of Christina Anderson, and I find it is in the best interest of the child,
      as well as a fair and equitable division of the community estate, and I
      will grant the divorce and sign it as of August 21st, 2014.

The trial judge proceeded to sign the “Agreed Final Decree of Divorce” on August

21, 2014.

      On November 12, 2014, Appellant filed a “Notice of Restricted Appeal.”

On November 13, 2014, this court sent Appellant a letter questioning whether it

had jurisdiction; the court questioned whether Appellant’s signature on the

“Agreed Final Decree of Divorce” constituted participation for purposes of a

restricted appeal. Appellant filed a response on November 24, 2014, in which he

asserted this court had jurisdiction, and on November 25, 2014, this court sent a

letter stating it had considered Appellant’s response and would allow the appeal

to continue. The court did so, however, without the benefit of the record. On

December 1, 2014, the reporter’s record was filed, and on December 15, 2014,

the clerk’s record was filed.

      On December 17, 2014, Appellee filed a “Motion with Brief in Support to

Reconsider Jurisdiction.” Appellant filed a response on December 31, 2014, and

Appellee filed a reply on January 5, 2015.

                                    Discussion

      Rule 30 of the Texas Rules of Appellate Procedure, which governs

restricted appeals, provides:

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             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). Restricted appeals replace writ
      of error appeals to the court of appeals. Statutes pertaining to writ of
      error appeals to the court of appeals apply equally to restricted
      appeals.

Tex. R. App. P. 30.

      Courts construe liberally the nonparticipation requirement for restricted

appeals in favor of the right to appeal. Pike-Grant v. Grant, 447 S.W.3d 884

(Tex. 2014). The question before the court is whether Appellant participated in

the hearing that resulted in the judgment complained of.           It is undisputed

Appellant did not appear in person or though counsel. The question, however, is

not whether he appeared; the question is whether he participated. It is also

undisputed Appellant signed a “Waiver of Citation” in which he asked the judge

not to sign any judgment unless he had signed it first.         The record shows

Appellant signed the “Agreed Final Decree of Divorce” before the prove-up

hearing, and it further shows the trial judge was aware of both Appellant’s waiver

and Appellant’s signature on the judgment before the trial judge herself ruled and

signed the judgment.

      The Supreme Court of Texas, relying on the statutory predecessor to rule

30, has written that participation is a matter of degree. Stubbs v. Stubbs, 685

S.W.2d 643, 645 (Tex. 1985). The court ruled that signing a waiver of citation

and an agreement incident to divorce were not sufficient acts to constitute

                                         4
participation in the actual trial.     Id.   However, the supreme court cited with

approval another case in which the appellant had waived citation, waived the

making of a statement of facts, and signed the divorce judgment itself and in

which the court concluded those acts were sufficient participation to preclude

jurisdiction. Id. (citing Blankinship v. Blankinship, 572 S.W.2d 807 (Tex. Civ.

App.—Houston [14th Dist.] 1978, no writ)). Appellant signed a waiver of citation

and the divorce decree itself, which places Appellant in a procedural posture

more like the appellant in Blankinship than the one in Stubbs. We hold that

Appellant, by signing the waiver of citation and the divorce decree itself

participated in the hearing that resulted in the judgment about which he

complains.    See Blankinship, 572 S.W.2d at 807–08; see also McNeely v.

McNeely, No. 11-02-00036-CV, 2003 WL 187573, at *1–2 (Tex. App.—Eastland

2003, pet. denied); Clopton v. Pak, 66 S.W.3d 513, 516 (Tex. App.—Fort Worth

2001, pet. denied) (ruling that although neither appellants nor their attorney

attended the hearing that resulted in the final order, appellants’ attorney’s signing

the joint motion to dismiss their claims with prejudice, which the trial court

granted, constituted participation).

      Appellant contends divorce proceedings are different because the trial

court is not bound by the parties’ agreements. We disagree. Both Blankinship

and McNeely were divorce proceedings.            McNeely, 2003 WL 187573, at *1;

Blankinship, 572 S.W.2d at 807. Furthermore, the trial court complied with the

parties’ agreement and did so only after expressly verifying that Appellant, as

                                             5
evidenced by his signature, agreed to the proposed judgment. Cf. Cox v. Cox,

298 S.W.3d 726, 730–31 (Tex. App.—Austin 2009, no pet.) (noting final divorce

decree varied from written settlement agreement and holding appellant met

nonparticipation requirement). Because Appellant was familiar with the contents

of the divorce decree before its entry by the trial court, Appellant was required to

pursue a regular appeal. See Blankinship, 572 S.W.2d at 808.

                                   Conclusion

      We grant Appellee’s motion to reconsider and dismiss Appellant’s appeal

for want of jurisdiction. See Clopton, 66 S.W.3d at 517 (dismissing the appeal for

want of jurisdiction).2

                                                   PER CURIAM

PANEL: GARDNER, J.; LIVINGSTON, C.J.; and WALKER, J.

DELIVERED: January 29, 2015




      2
        The Eastland Court of Appeals in McNeely treated the appellant’s
participation as a basis for affirming the trial court’s judgment as distinguished
from a basis for dismissing the appeal for want of jurisdiction. McNeely, 2003
WL 187573, at *2.

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