Jack Jouette v. Michele Gonzales--Appeal from 288th Judicial District Court of Bexar County

No. 04-99-00744-CV
Jack JOUETTE, Jr.,
Appellant
v.
Michele GONZALES,
Appellee
From the 288th Judicial District Court, Bexar County, Texas
Trial Court No. 99-CI-00536
Honorable David A. Berchelmann, Jr., Judge Presiding

Opinion by: Karen Angelini, Justice

Sitting: Tom Rickhoff, Justice

Catherine Stone, Justice

Karen Angelini, Justice

Delivered and Filed: July 19, 2000

AFFIRMED

This is a restricted appeal from a judgment granting Michele Gonzales a divorce from Jack Jouette, Jr. Jouette does not appeal that portion of the judgment granting divorce, but appeals the trial court's division of the marital property. In two issues, he claims that because there is no record of the hearing in the trial court, he is prevented from showing the trial judge abused his discretion in distributing the marital property, and there is no evidence to support the trial judge's division. Jouette, however, has failed to meet the requirements of a restricted appeal. We therefore, affirm the trial court's judgment.

Discussion

A restricted appeal must be brought within six months after the trial court signs the judgment, and is available to a party to the suit, who did not participate in the actual trial. See Tex. R. App. P. 30; Norman Communications v. Texas Eastman Co., 955 S.W.2d 269, 270 (Tex. 1997). Additionally, the error complained of must be apparent on the face of the record. See Norman Communications, 955 S.W.2d at 270. The face of the record, for purposes of a restricted appeal, consists of all the papers on file in the appeal, including the reporter's record. See id.

Jouette has met the first three criteria of a restricted appeal. He is a party to the suit, who did not participate in the divorce proceedings. See Stubbs v. Stubbs, 685 S.W.2d 643, 645 (Tex. 1985); Blankinship v. Blankinship, 572 S.W.2d 807, 808 (Tex. Civ. App. Houston [14th Dist.] 1978, no writ). In addition, he filed his restricted appeal within six months of the final judgment's entry. To satisfy the final requirement, Jouette alleges that the error on the face of the record is the absence of the reporter's record. Apparently, there is no reporter's record of the hearing held before the trial court. In making his assertion, Jouette relies on cases that interpret section 105.003 of the Family Code. See Stubbs v. Stubbs, 685 S.W.2d 643 (Tex. 1985); Rogers v. Rogers, 561 S.W.2d 172 (Tex. 1978); Smith v. Smith, 544 S.W.2d 121 (Tex. 1976). Section 105.003 dictates the procedure to be used in a suit involving the parent-child relationship when the parties waive the making of a record. Tex. Fam. Code Ann. 105.003 (Vernon 1996). Courts have interpreted this section to require that a record be made unless waived by all parties involved with the court's consent. See Stubbs, 685 S.W.2d at 645; Walker v. Stefanic, 898 S.W.2d 347, 349 (Tex. App. San Antonio 1995, no writ). In this case, however, the parties did not have children and therefore article six of the Family Code, which controls the dissolution of marriage, governs. Nothing in article six places an affirmative duty on the court to record proceedings of this nature. Therefore, Jouette's reliance on Stubbs, Rogers, and Smith is misplaced.

Furthermore, Jouette signed and filed a proper waiver of citation. See Tex. Fam. Code Ann. 6.4035 (Vernon 1998). Included in the waiver of citation is a waiver of the right to further notice of proceedings in the case and a waiver of the right to a record of any such proceedings. Waivers of this type are often employed in divorce proceedings. See Edwards v. Edwards, 651 S.W.2d 940, 942 (Tex. App. Fort Worth 1983, no writ); see also Barbara Ann Kazen, Kazen's Practical Family Law Manual, Forms, 83 (1996). Because Jouette was not entitled to have the trial recorded, the only record we have before us is the clerk's record. Jouette directs us to nothing in the limited record, nor after our own review, do we find anything that indicates the trial court erred in entering the judgment. Jouette has failed to show error on the face of the record and, therefore, has not established all the necessary elements of a restricted appeal. Accordingly, we overrule Jouette's two issues and affirm the trial court's judgment.

Karen Angelini, Justice

DO NOT PUBLISH