In the Interest of Amalia Margarita Blanco, A Minor Child--Appeal from 224th Judicial District Court of Bexar County

No. 04-97-00788-CV

IN THE INTEREST OF A.M.B., a Child

From the 224th Judicial District Court, Bexar County, Texas

Trial Court No. 94-EM5-01471

Honorable Andy Mireles, Judge Presiding(1)

Opinion by: Karen Angelini, Justice

Sitting: Phil Hardberger, Chief Justice

Tom Rickhoff, Justice

Karen Angelini, Justice

Delivered and Filed: September 16, 1998

AFFIRMED

Nature of the case

Richard C. Garay appeals from an order establishing the parent-child relationship. In his first issue, Garay alleges that he did not receive notice of the final hearing in violation of the due process clause. In his second issue, Garay argues that the absence of the reporter's record from the hearing constitutes error on its face and requires a new trial.

The Office of the Attorney General filed a petition to establish the parent-child relationship, alleging that Garay was the biological father of A.M.B. Garay acknowledged paternity and filed a pro se counter-claim requesting joint managing conservatorship of A.M.B. The master's court held a temporary hearing on July 19, 1994, and appointed A.M.B.'s biological mother as temporary managing conservator and Garay as temporary possessory conservator. At a subsequent temporary hearing in January of 1995, the temporary orders were modified to allow Garay only supervised visitation for 30 minutes a week. Garay was present at both temporary hearings and represented himself. In January of 1996, Garay was incarcerated.(2)

Although Garay states that he wrote to the Attorney General requesting a bench warrant, there is no motion or request for a bench warrant in the record. He did not attend any of the remaining hearings. Garay acknowledges receiving notice of a temporary hearing scheduled on March 17, 1997. He also stated that he received notice of the final hearing set for May 8, 1997. On May 8, the court signed an order resetting the case for June 6. Garay claims he did not receive notice of the June 6 hearing at which the court signed an order denying him visitation with A.M.B., ordering him to pay monthly child support, and ordering him to pay retroactive child support in the amount of $4,217.25.

Garay filed a motion for new trial alleging that he did not receive notice of the June 6 hearing. The motion was overruled by operation of law. Garay then filed this pro se appeal and filed a motion for records. Although the judgment recites that a record of the proceedings was electronically recorded, the court clerk of the master's court sent an affidavit stating that the proceedings of June 6, 1997 were not recorded due to a malfunction in the recording equipment. In an order dated December 22, 1997, this court ordered the parties to address the effect of the absent reporter's record. Garay filed a supplemental brief in which he argues that the case should be remanded for a new trial because of the absence of the reporter's record. Garay also alleges that he was denied a jury trial. However, the clerk's record does not show that Garay made a jury request or paid a jury fee which are both required to receive a jury trial. See Tex. R. Civ. P. 216. We will first address the issue of the absent reporter's record.

Reporter's Record

In his second issue on appeal, Garay alleges that the court erred by failing to require the court reporter to make a record of the trial. In a suit affecting the parent-child relationship, "a record shall be made as in civil cases generally unless waived by the parties with the consent of the court." Tex. Fam. Code Ann. 105.003(c) (Vernon 1996); Stubbs v. Stubbs, 685 S.W.2d 643, 645 (Tex. 1985); Walker v. Stefanic, 898 S.W.2d 347, 349 (Tex. App.--San Antonio 1995, no writ). We do not find that the court failed to require the proceedings to be recorded because the judgment states that "a record of the proceedings was electronically recorded." However, as stated in the clerk's affidavit, the recording equipment malfunctioned and the proceedings were not recorded.(3) Therefore, we look to the Rules of Appellate Procedure for the implications of a lost or destroyed reporter's record. Rule 34.6 provides:

(f) Reporter's Record Lost or Destroyed. An appellant is entitled to a new trial under the following circumstances:

(1) if the appellant has timely requested a reporter's record;

(2) if, without the appellant's fault, a significant exhibit or a significant portion of the court reporter's notes and records has been lost or destroyed or--if the proceedings were electronically recorded--a significant portion of the recording has been lost or destroyed or is inaudible;

(3) if the lost, destroyed, or inaudible portion of the reporter's record, or the lost or destroyed exhibit, is necessary to the appeal's resolution; and

(4) if the parties cannot agree on a complete reporter's record.

Tex. R. App. P. 34.6(f)(1)-(4).(4) Because Garay requested the reporter's record and the recording has been lost or destroyed without his fault, we must determine if the reporter's record is necessary to the appeal's resolution. Therefore, we need to consider Garay's notice issue to determine whether the reporter's record is necessary to resolve this appeal.Notice

In his first issue, Garay alleges that the court erred by granting a default judgment because he had no actual or constructive notice of the June 6 hearing in violation of the due process clause of the United States Constitution. If a defendant has made an appearance in a contested case, he is entitled to notice of the trial setting as a matter of due process. Peralta v. Heights Medical Ctr., Inc., 485 U.S. 80, 84-86 (1988). The trial court is presumed to have heard a case only after proper notice to the parties. Trevino v. Gonzalez, 749 S.W.2d 221, 223 (Tex. App.--San Antonio 1988, writ denied); Osborn v. Osborn, 961 S.W.2d 408, 411 (Tex. App.--Houston [1st Dist.] 1997, pet. denied). A recitation in the judgment, that notice of a trial setting was given to the parties, constitutes some evidence that proper notice was given. Osborn, 961 S.W.2d at 411. In order to overcome the presumption of proper notice, the appellant must affirmatively demonstrate a lack of notice. Trevino, 749 S.W.2d at 223. However, notice of a trial setting does not ordinarily appear in the transcript and does not need to affirmatively appear in the record. Delgado v. Hernandez, 951 S.W.2d 97, 99 (Tex. App.--Corpus Christi 1997, no writ).

In this case, the judgment recites that Garay was duly notified but did not appear at the hearing on June 6. Garay must overcome the presumption of proper notice by affirmatively showing a lack of notice by affidavit or other competent evidence. Id. Garay's argument is based solely on statements in his motion for new trial. See Trevino, 749 S.W.2d at 223 (finding that statements in motion for new trial alleging lack of notice do not overcome presumption of proper notice). Garay did not file an affidavit to support his claims of lack of notice. We find that Garay has not overcome the presumption of proper notice. Thus, we overrule Garay's first issue.

We further find that the reporter's record was not necessary to the resolution of this appeal because Garay failed to affirmatively show a lack of notice. We overrule his second issue. Accordingly, we affirm the judgment.

KAREN ANGELINI, JUSTICE

DO NOT PUBLISH

1. The Honorable Juan Antonio Chavira, a master, presided over the hearing, and the Honorable Andy Mireles approved Judge Chavira's order.

2. Although not determinable from the record, Garay was found guilty on two counts of the offense of sexual performance by a child. His conviction was affirmed by this court in Garay v. State, 954 S.W.2d 59, 62 (Tex. App.--San Antonio 1997, pet. ref'd).

3. Because the judgment stated that the hearing was electronically recorded, we assume that the court did not realize the recording equipment was not functioning at the time of the hearing.

4. The new rules of appellate procedure apply to this appeal. Former Rule 50(e) stated: "If the appellant has made a timely request for a statement of facts, but the court reporter's notes have been lost or destroyed without appellant's fault, the appellant is entitled to a new trial unless the parties agree on a statement of facts." Rule 34.6(f)(3) added the language that the lost or destroyed reporter's record must be necessary to the appeal's resolution in order to receive a new trial.