Fourth Court of Appeals
San Antonio, Texas
MEMORANDUM OPINION
No. 04-12-00315-CV
Dakota Snow PIKE GRANT,
Appellant
v.
Jeffrey Alan GRANT,
Appellee
From the 83rd Judicial District Court, Val Verde County, Texas
Trial Court No. 27731
Honorable Carl Pendergrass, Judge Presiding
Opinion by: Marialyn Barnard, Justice
Sitting: Karen Angelini, Justice
Marialyn Barnard, Justice
Luz Elena D. Chapa, Justice
Delivered and Filed: September 16, 2015
REVERSED AND REMANDED
This is a restricted appeal from a final decree of divorce. On original submission, this court
dismissed the appeal for want of jurisdiction, holding we lacked jurisdiction because appellant
Dakota Snow Pike Grant failed to establish she did not participate in the hearing “that resulted in
the judgment complained of.” Pike Grant v. Grant, 448 S.W.3d 63, 66–67 (Tex. App.—San
Antonio 2013), rev’d, 447 S.W.3d 884 (Tex. 2014). Pike Grant sought review in the Texas
Supreme Court. The supreme court granted her petition for review and reversed our judgment,
holding Pike Grant established she did not participate in the hearing that resulted in the divorce
04-12-00315-CV
decree. 1 Pike Grant, 447 S.W.3d at 887. The supreme court remanded the matter back to this
court for further proceedings. Id.
In her original appeal to this court, and now on remand, Pike Grant raises three issues in
which she alleges the final decree of divorce should be set aside because: (1) she did not receive
notice of the final hearing; (2) the pleadings do not support the relief granted with regard to
conservatorship, possession and access, and child support; and (3) the evidence was legally and
factually insufficient to support the relief granted regarding conservatorship, possession and
access, child support, and division of the marital property. We reverse the trial court’s judgment
and remand the matter to the trial court for a new trial.
BACKGROUND
A detailed rendition of the factual and procedural history of this case was set out in our
original opinion. See Pike Grant, 448 S.W.3d at 65–66. Moreover, it is unnecessary to reiterate a
detailed factual and procedural history on remand given our disposition. Accordingly, we provide
only a brief statement of the facts and procedural history for context and for purposes of our
disposition.
Pike Grant and Jeffrey Alan Grant (“Grant”) were married in 2008. During the marriage,
they had one child. They separated in 2009, and soon thereafter, Grant filed for divorce. Pike
Grant timely filed an answer through an attorney. Thereafter, Pike Grant filed a counterpetition
for divorce.
Ultimately, on June 27, 2011, Grant filed a motion to set the case for a non-jury trial on
September 27, 2011. The trial court signed an order granting the motion and setting the case for
trial on September 27, 2011. A letter from the trial court’s coordinator, dated August 29, 2011,
1
Based on the supreme court’s holding, this restricted appeal arises from a post-answer default judgment.
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was sent to the attorneys of record, including Pike Grant’s attorney, enclosing the order and
advising of the trial setting.
Pike Grant’s attorney filed a motion to withdraw. The motion appears to have been filed
almost simultaneously with the court’s notice of trial setting. The certificate of service states the
motion was served in accordance with the Texas Rules of Civil Procedure on August 29, 2011; the
motion was file-stamped by the district clerk’s office on August 30, 2011. The motion to withdraw
advised Pike Grant there were “no pending settings or deadlines.” It seems Pike Grant’s attorney
had yet to receive the trial court’s August 29, 2011 order setting the matter for trial. The trial court
never signed an order with regard to the motion to withdraw; rather, the record establishes the
order was returned “unsigned.”
On September 27, 2011, the trial court called the matter for trial. The reporter’s record
reflects Grant appeared telephonically and his attorney appeared in person. Neither Pike Grant
nor her attorney appeared. Nevertheless, Grant proceeded to put on his case with regard to the
divorce action, which included evidence concerning property division, conservatorship, and
possession and access. At the conclusion of the hearing, Grant presented the trial court with a
proposed final decree of divorce.
On November 29, 2011, the trial court signed the final decree of divorce. The decree recites
at the outset that the matter was heard on November 29, 2011, and all parties appeared in person
with their counsel. However, there is nothing in the record beyond this initial recital to establish
a hearing was actually held on November 29, 2011. Pike Grant, 447 S.W.3d at 886–87. Rather,
numerous notations in the record, as well as the absence of a court reporter, led the supreme court
to conclude no hearing was held on November 29, 2011. Id. Instead, the final hearing was
conducted on September 27, 2011, as stated in the reporter’s record from that day — a hearing at
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which neither Pike Grant nor her attorney appeared. Id. at 887. Thus, the final decree was a result
of the September 27, 2011 hearing. See id.
In the decree, the trial court granted the divorce, divided the marital estate, and determined
conservatorship and access. Thereafter, having missed the deadline for filing a standard notice of
appeal, Pike Grant filed a notice of restricted appeal. After this court dismissed the appeal for
want of jurisdiction, Pike Grant sought review in the supreme court, and as noted above, the
supreme court reversed our judgment and remanded the matter to us to review Pike Grant’s issues
challenging the trial court’s judgment of divorce. Id. We now undertake that review.
ANALYSIS
Pike Grant raises three issues in which she contends the trial court erred in rendering the
final decree of divorce. Specifically, she contends the judgment must be reversed because she did
not receive the required notice of the final hearing (the trial), the pleadings do not support the
judgment, and the evidence is legally and factually insufficient to support the judgment. Because
we hold the face of the record shows Pike Grant did not receive proper notice of the final hearing,
i.e., the hearing that resulted in the final decree, we reverse this matter and remand to the trial court
for a new trial. 2
2
We acknowledge that Pike Grant has raised a challenge to the legal sufficiency of the evidence. When an appellant
raises a legal sufficiency challenge, we review that issue first because if the evidence is legally sufficient, we must
generally render the judgment the trial court should have rendered — remand is usually unnecessary. See TEX. R.
APP. P. 43.3. However, in family law cases, the standard by which we review legal sufficiency challenges is unlike
that used in other civil cases. See, e.g., Watson v. Watson, 286 S.W.3d 519, 522–23 (Tex. App.—Fort Worth 2009,
no pet.); Garza v. Garza, 217 S.W.3d 538, 549 (Tex. App.—San Antonio 2006, no pet.); Moroch v. Collins, 174
S.W.3d 849, 857 (Tex. App.—Dallas 2005, pet. denied). In family law cases, a trial court’s decision is reviewed under
an abuse of discretion standard. See Watson, 286 S.W.3d at 522; Garza, 217 S.W.3d at 548. Thus, the traditional
sufficiency standards of review overlap with the abuse of discretion standard of review. Watson, 286 S.W.3d at 522;
Garza, 217 S.W.3d at 549. As a result of this overlap, in order to determine whether a trial court has abused its
discretion because the evidence is legally or factually insufficient, we conduct a two-step analysis in which we must
determine whether the trial court had sufficient evidence upon which to render a decision and did the trial court err in
the application of its discretion. Watson, 286 S.W.3d at 522–23; Garza, 217 S.W.3d at 549; Moroch, 174 S.W.3d at
857. Thus, if we should sustain a legal sufficiency challenge in a family law case such as this, i.e., find the trial court
abused its discretion because there was insufficient evidence to support a particular finding, we must reverse and
remand for a new trial as opposed to rendering the judgment the trial court should have rendered. See Watson, 286
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Restricted Appeal
To prevail on a restricted appeal, an appellant must demonstrate: (1) the notice of restricted
appeal was filed within six months of the date of the judgment or order; (2) she was a party to the
suit; (3) she did not participate in the hearing that resulted in the judgment complained of, and did
not file a timely post-judgment motion or request for findings of fact and conclusions of law; and
(4) error is apparent from the face of the record. TEX. R. APP. P. 30; Alexander v. Lynda’s
Boutique, 134 S.W.3d 845, 848 (Tex. 2004); In re B.H.B., 336 S.W.3d 303, 305 (Tex. App.—San
Antonio 2010, pet. denied). Here, it is undisputed that Pike Grant filed her restricted appeal within
six months of judgment and she was a party to the divorce action. The supreme court has held she
did not participate in the hearing that resulted in the final decree of divorce. Pike Grant, 447
S.W.3d at 887. Thus, the only remaining issue is whether Pike Grant has demonstrated that any
of the errors of which she complains are apparent from the face of the record. See TEX. R. APP. P.
30; Alexander, 134 S.W.3d at 848 (Tex. 2004); B.H.B., 336 S.W.3d at 305.
Lack of Notice Under Rule 245
In her first issue, Pike Grant asserts it is apparent from the face of the record that she did
not receive forty-five days’ notice of the final hearing, i.e., the September 27, 20011 hearing, as
required by Rule 245 of the Texas Rules of Civil Procedure. Pike Grant contends that because she
was not provided with proper notice, she is entitled to a new trial. We agree.
When a party has filed an answer in a divorce case — as Pike Grant did here — she is
entitled to notice of trial pursuant to Rule 245. See TEX. R. CIV. P. 245; Campsey v. Campsey, 111
S.W.3d 767, 771 (Tex. App.—Fort Worth, 2003, no pet.); Blanco v. Bolanos, 20 S.W.3d 809, 811
(Tex. App.—El Paso 2000, no pet.); see also In re K.M.L., 443 S.W.3d 101, 118–19 (Tex. 2014)
S.W.3d at 523. Accordingly, even if we were to sustain Pike Grant’s legal sufficiency challenge, it would merely
result in a remand.
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(holding that in parental termination case, father was entitled to forty-five days’ notice of trial
pursuant to Rule 245). According to the rule, a trial court may set contested cases for trial on the
written request of any party or on the court’s own motion. TEX. R. CIV. P. 245; see K.M.L., 443
S.W.3d at 118; Campsey, 111 S.W.3d at 772. However, the trial court must provide the parties
with “reasonable notice of not less than forty-five days” of the trial setting. TEX. R. CIV. P. 245;
see K.M.L., 443 S.W.3d at 118; Campsey, 111 S.W.3d at 772. Notice pursuant to Rule 245 is
mandatory. Custom-Crete, Inc. v. K-Bar Servs., Inc., 82 S.W.3d 655, 659 (Tex. App.—San
Antonio 2002, no pet.). The only exception to the forty-five day rule is if the setting is not a first
setting or by agreement of the parties. TEX. R. CIV. P. 245. A trial court’s failure to comply with
the notice rule in a contested case deprives a party of the constitutional right to be present at the
hearing, to voice objections, and is a violation of fundamental due process. K.M.L., 443 S.W.3d
at 119; Campsey, 111 S.W.3d at 771; Custom-Crete, 82 S.W.3d at 659; Blanco, 20 S.W.3d at 811.
An absence of notice under Rule 245 results in a lack of due process and is grounds for reversal.
Custom-Crete, Inc., 82 S.W.3d at 659; see K.M.L., 443 S.W.3d at 119.
However, we must presume the trial court will hear a case only when proper notice has
been given to the parties. Campsey, 111 S.W.3d at 771; Custom-Crete, Inc., 82 S.W.3d at 659;
Blanco, 20 S.W.3d at 811. Thus, when a party challenges a judgment based on lack of notice, she
has the burden of proving an absence of notice and must produce evidence of same. Campsey,
111 S.W.3d at 771; Custom-Crete, Inc., 82 S.W.3d at 659; Blanco, 20 S.W.3d at 811. An appellant
cannot do this by mere allegations, but must affirmatively show a lack of notice. Campsey, 111
S.W.3d at 771; Custom-Crete, Inc., 82 S.W.3d at 659; Blanco, 20 S.W.3d at 811. Moreover, as
this is a restricted appeal, the lack of notice — the error raised by Pike Grant — must be apparent
on the face of the record. See TEX. R. APP. P. 30; Alexander, 134 S.W.3d at 848 (Tex. 2004);
B.H.B., 336 S.W.3d at 305.
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In this case, the record shows the first trial date was set by the trial court in an order dated
August 29, 2011. 3 The order is entitled “ORDER SETTING CAUSE TO NON-JURY TRIAL
DOCKET” and set the date of trial for September 27, 2011, at 11:00 a.m. The court coordinator,
by letter dated August 29, 2011, sent a copy of the order by mail to the attorneys of record. As
stated above, the trial took place on September 27, 2011.
Given the dates of the notice and the date of trial as shown in the record, we hold the record
affirmatively demonstrates Pike Grant received less than the forty-five days’ notice mandated by
Rule 245. The date of the notice as stated in both the trial court’s order and the coordinator’s letter
— August 29, 2011 — is a mere twenty-nine days before the date of trial, far short of the forty-
five days mandated by the rule. Accordingly, because Pike Grant did not receive notice of trial as
required by Rule 245, we sustain her first issue.
CONCLUSION
Based on the foregoing analysis, we hold the trial court erred in rendering judgment in
favor of Grant given the lack of notice to Pike Grant pursuant to Rule 245. Because Pike Grant
did not receive proper notice, she was denied due process and is entitled to a reversal. See Custom-
Crete, Inc., 82 S.W.3d at 659; see K.M.L., 443 S.W.3d at 119. Accordingly, we reverse the trial
court’s judgment and remand this matter to the trial court for a new trial. Given our disposition of
Pike Grant’s first issue, we need not address her remaining issues because any favorable ruling on
those issues would not entitle Pike Grant to any additional relief.
Marialyn Barnard, Justice
3
The order actually indicates it was signed on September 29, 2011, two days after the actual trial. However, we
presume, as does Pike Grant, that this was an error as the order is file-stamped August 29, 2011.
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