TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-19-00852-CV
Jose Martin Carbajal, Appellant
v.
Irma Albiter-Carbajal, Appellee
FROM THE 421ST DISTRICT COURT OF CALDWELL COUNTY
NO. 19-D-372, THE HONORABLE CHRIS SCHNEIDER, JUDGE PRESIDING
MEMORANDUM OPINION
This is a restricted appeal from a default judgment granting a final divorce decree
between appellant Jose Martin Carbajal (Carbajal) and appellee Irma Albiter-Carbajal (Albiter).
Carbajal presents five issues on appeal. In his first and second issues, Carbajal asserts that the
trial court erred by holding a hearing on temporary orders when he had not been served with the
application for temporary orders at least three days before the hearing, see Tex. R. Civ. P. 21(b),
and that he was harmed as a result. In his third and fourth issues, Carbajal asserts that Albiter
was required to serve him with the signed temporary orders, see Tex. R. Civ. P. 688, and that
her failure to do so caused him harm. In his fifth issue, Carbajal argues that the final divorce
decree should be reversed and a new trial ordered because he meets the requirements set forth in
Craddock v. Sunshine Bus Lines, Inc., 133 S.W.2d 124 (Tex. 1939) (establishing elements of
proof required for trial court to grant motion for new trial following default judgment). We will
affirm the trial court’s final decree of divorce.
BACKGROUND
Albiter filed an original petition for divorce in Caldwell County district court on
July 20, 2019. Albiter sought dissolution of the marriage and, in the event the parties could not
reach an agreement regarding the division of community property, a disproportionate award of
community property, including two pieces of real property. Albiter also requested that the court
make temporary orders about the use of the marital residence and Carbajal’s contact with her.
The officer’s return in the clerk’s record states that he served Carbajal with the
original petition and a notice of a hearing on Albiter’s request for temporary orders by delivering
them in person to Carbajal on August 27, 2019. On August 29, the court held a hearing on
Albiter’s request for temporary orders. Carbajal did not appear at the hearing. After the hearing,
the court entered temporary orders granting Albiter exclusive use of the marital home, an
automobile, and one of two duplexes owned by the parties, and granting Carbajal exclusive
use of the other of the two duplexes owned by the parties, all property used by Carbajal in
conducting his landscaping business, and all bank accounts related to the landscaping business.
The court ordered that the temporary orders would “continue in force until the signing of the
Final Decree of Divorce” or until further order of the court.
Carbajal never appeared or answered the original petition for divorce. After a
hearing at which Carbajal did not appear, the court granted Albiter a default decree of divorce
and signed a default final decree of divorce awarding her four pieces of real property—the
marital residence, the two duplexes, and a piece of real property located in Mexico—her personal
effects and household furnishings, all cash in her possession or subject to her sole control along
with two checking accounts and two savings accounts with a combined balance of approximately
$1,250, any life insurance policies insuring her life, a motor vehicle, and a utility trailer. The
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decree awarded Carbajal his personal effects and household furnishings, all cash in his
possession or subject to his sole control along with one checking account and two savings
accounts with a combined balance of approximately $4,500, any life insurance policies insuring
his life, five motor vehicles, a utility trailer, and the landscaping business. The final divorce
decree was signed on October 8, 2019.
The deadline for Carbajal to file a notice of appeal was November 7, 2019. He
did not file a notice of appeal until November 21. On November 25, Carbajal filed an unsworn
motion to extend the deadline for filing his notice of appeal stating that the extension was needed
because he did not know that the default divorce decree had been rendered until November 13,
at which time he immediately sought the advice of counsel who filed a notice of appeal on
November 21. See Tex. R. App. P. 26.3 (appellate court may extend time to file notice of
appeal if, within 15 days after deadline for filing notice of appeal party filed notice of appeal
and motion complying with Texas Rule of Appellate Procedure 10.5(b)), see also id. R. 10.5(b)
(motion to extend time for filing notice of appeal must state facts relied on to reasonably explain
need for extension).
While the motion for extension of time was pending, Albiter filed a motion
objecting to Carbajal’s motion for extension of time to file his notice of appeal and requesting
that this Court dismiss his untimely filed appeal. Albiter attached an affidavit to the motion in
which she averred that on October 15, 2019, she received at the marital residence two letters
from the district court clerk containing notices of the final divorce decree, one addressed to her
and one addressed to Carbajal. Albiter stated in her affidavit that after she opened her notice,
she gave Carbajal the letter from the court that was addressed to him and informed him that it
contained a notice of the final decree of divorce. Albiter averred that Carbajal threw the letter
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down and told Albiter that she “had gotten what she wanted.” Thus, Albiter argued, because
Carbajal had knowledge of the final decree of divorce on October 15, his motion for extension of
time failed to reasonably explain the need for an extension of time to file the notice of appeal and
should be denied.
In response to Albiter’s motion to dismiss and her sworn testimony regarding
having given Carbajal the notice of the final decree of divorce on October 15, the Clerk of this
Court requested that Carbajal file an amended notice of appeal to bring a restricted appeal, see
In re K.M.Z., 178 S.W.3d 432, 434 (Tex. App.—Fort Worth 2005, no pet.) (when appellant
failed to provide reasonable explanation for late filing of notice of appeal, court of appeals could
consider appeal only as restricted appeal) or, alternatively, take steps in the trial court to establish
that he did not receive notice of the final divorce decree until November 13, see Tex. R. Civ.
P. 306(a)(5), (6). Carbajal responded by filing a notice of restricted appeal, stating that he did
not participate in the hearing that resulted in the trial court’s judgment and did not timely file a
post-judgment motion, request for findings of fact and conclusions of law, or notice of appeal.
See Tex. R. App. P. 30 (restricted appeals).
DISCUSSION
To prevail in a restricted appeal, the appellant must demonstrate that (1) the notice
of restricted appeal was filed within six months of the date of the final judgment or order; (2) he
was a party to the suit; (3) he did not participate in the hearing that resulted in the judgment
complained of and did not timely file a post-judgment motion or request for findings of fact and
conclusions of law; and (4) error is apparent on the face of the record. See id.; Alexander v.
Lynda’s Boutique, 134 S.W.3d 845, 848 (Tex. 2004). The first three requirements are
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jurisdictional and cut off a party’s right to seek relief by way of a restricted appeal if they are not
met. See Clopton v. Pak, 66 S.W.3d 513, 515 (Tex. App.—Fort Worth 2001, pet. denied). Once
the appellant establishes that he has met the first three requirements, he must then establish error
apparent from the face of the record to be entitled to relief from an adverse judgment. Id. The
error apparent from the face of the record must be reversible error, that is, error that resulted in
an erroneous judgment. See General Elec. Co. v. Falcon Ridge Apartments, Joint Venture, 811
S.W.2d 942, 944 (Tex. 1991) (appellant in restricted appeal not entitled to relief from adverse
judgment when no reversible error was apparent from face of record); Norman Commc’ns v.
Texas Eastman Co., 955 S.W.2d 269, 270 (Tex. 1997) (per curiam) (in restricted appeal,
appellant is afforded same scope of review as ordinary appeal with restriction that error must
appear on face of record); see also Tex. R. App. P. 44.1 (no judgment may be reversed on appeal
unless court of appeals concludes that error complained of probably caused rendition of improper
judgment or probably prevented appellant from properly presenting case to court of appeals and
thus constituted reversible error).
Carbajal filed the notice of restricted appeal on February 7, 2020, which was
within six months of the date of the final divorce decree. Carbajal states, and the reporter’s
record supports, that he did not participate in the hearing that resulted in the final divorce decree
he complains of and that he did not file either a post-judgment motion or request for findings of
fact and conclusions of law. Thus, he has met the jurisdictional requirements for seeking relief
by way of a restricted appeal. See Clopton, 66 S.W.3d at 515; Tafoya v. Green Tree Servicing
LLC, No. 03-14-00391-CV, 2014 WL 7464321, at *1 (Tex. App.—Austin Dec. 30, 2014, no
pet.) (mem. op.). We next consider whether Carbajal has demonstrated reversible error apparent
on the face of the record.
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In his first two issues, Carbajal complains that the trial court erred by holding a
hearing on temporary orders without providing three days’ notice as contemplated by Texas Rule
of Civil Procedure 21(b). See Tex. R. Civ. P. 21(b) (application to court for order and notice of
hearing thereon generally must be served on all other parties not less than three days before time
specified for hearing). Even assuming the face of the record demonstrates there was error
associated with the trial court’s entry of temporary orders, such error would not constitute error
that resulted in an erroneous judgment. The temporary orders continued in effect only until the
trial court rendered its final divorce decree, which occurred after the court considered evidence
presented by Albiter during trial. The face of the record does not demonstrate that the allegedly
inadequate notice of the hearing on the temporary orders caused the rendition of an improper
final decree of divorce or otherwise affected the trial court’s judgment. Although Carbajal
includes in his brief extensive argument, supported by an attached affidavit, explaining how he
claims to have been harmed by not appearing at the temporary orders hearing, none of that
information or evidence was before the trial court when it rendered the final divorce decree, and
we may not consider it in this restricted appeal. See Cox v. Cox, 298 S.W.3d 726, 732 (Tex.
App.—Austin 2009, no pet.).1
In his third and fourth issues, Carbajal asserts that he was not served with the
temporary orders pursuant to rules 688 and 689 of the Texas Rules of Civil Procedure. See Tex.
R. Civ. P. 688, 689. Carbajal argues that the failure to serve him with temporary orders harmed
him because had he been served with the orders, he would have known to disbelieve the
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Nor would we be able to consider such evidence in an ordinary appeal. See Chandler
v. Strong, No. 03-12-00575-CV, 2014 WL 1203208, at *2 n.3 (Tex. App.—Austin Mar. 20,
2014, pet. denied) (mem. op.) (appellate court must determine case on record as filed and cannot
consider exhibits or appendices attached to briefs).
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assurances he claims Albiter made to him that he “didn’t need to hire an attorney and she would
give him half of everything.” Carbajal further asserts that had he known about the contents of
the temporary orders, he would have retained counsel and filed an answer that would have
precluded a default divorce decree. As support for this argument, Carbajal relies on the affidavit
he attached to his appellate brief. Here again, nothing on the face of the record demonstrates
that error, if any, regarding service of temporary orders on Carbajal resulted in the trial court
rendering an improper final divorce decree. As previously stated, we may not consider Carbajal’s
affidavit in this restricted appeal, nor could we in an ordinary appeal. Carbajal has not
demonstrated that any issue related to the court’s entry of temporary orders constituted error on
the face of the record that resulted in reversible error.
In his fifth issue, Carbajal asserts that he is entitled to a new trial because he can
establish the requirements for obtaining a new trial set forth in Craddock. See Craddock,
133 S.W.2d at 125-26. In a restricted appeal, however, we are confined to determining whether
there is error on the face of the record such that the appellant is entitled to relief from an
erroneous judgment. See Alexander, 134 S.W.3d at 848. The Craddock elements have no
bearing on whether, in a restricted appeal, the appellant is entitled to relief from an adverse
judgment in a restricted appeal. See Sutherland v. Spencer, 376 S.W.3d 752, 754 (Tex. 2012).
Craddock establishes the requirements that a defendant must establish for a trial court to set
aside a post-answer default judgment on motion for new trial, not whether an appellant is entitled
to relief from an adverse judgment in a restricted appeal. See Fidelity & Guar. Ins. Co. v.
Drewery Constr. Co., 186 S.W.3d 571, 573-74 (Tex. 2006) (discussing difference between
restricted appeal, brought directly in appellate court where record is limited, and motion for new
trial or bill of review, filed in trial court where record can be developed). On appeal, Carbajal
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attempts to establish that he has met the Craddock factors by referring to the affidavit attached to
his appellate brief. While developing such evidence may be appropriate to support a motion
for new trial or bill of review in the trial court, in this restricted appeal we may only determine
whether there is error on the face of the record. See Alexander, 134 S.W.3d at 847 (court could
not consider affidavit executed after case reached appellate court on restricted appeal because it
constituted extrinsic evidence that cannot be considered in restricted appeal).
CONCLUSION
Because Carbajal has not demonstrated that there was reversible error on the face
of the record, he is not entitled to relief from the final divorce decree in this restricted appeal.
We affirm the trial court’s judgment.
__________________________________________
Chari L. Kelly, Justice
Before Justices Goodwin, Kelly, and Smith
Affirmed
Filed: June 10, 2021
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Jose Martin Carbajal v. Irma Albiter-Carbajal
Combined Opinion