In the Matter of the Marriage of David Michael Little and Charlene McDowell Little--Appeal from 85th District Court of Brazos County

IN THE

TENTH COURT OF APPEALS

No. 10-08-00078-CV

In the Matter of the Marriage of

David Michael Little

and

Charlene McDowell Little

From the 85th District Court

Brazos County, Texas

Trial Court No. 07-002205-CVD-85

MEMORANDUM Opinion

Charlene McDowell Little appeals the trial court s final decree of divorce from David Michael Little. We reverse.

In Charlene s sole issue, she contends that the trial court erred in signing a final judgment after a bench trial of which Charlene had no notice.

Charlene waived citation. After the bench trial, but before the trial court signed its decree, Charlene filed an answer. Charlene objected to the trial court s signing a final judgment, on the grounds that she had had no notice of trial. The trial court overruled Charlene s objections and signed its decree.

The Fourteenth Amendment to the United States Constitution provides: No State shall . . . deprive any person of life, liberty, or property, without due process of law . . . . U.S. Const. amend. XIV, 1. Once a defendant has made an appearance in a cause, he is entitled to notice of the trial setting as a matter of due process under the Fourteenth Amendment to the federal constitution, as set forth in Peralta v. Heights Medical Center, Inc., 485 U.S. 80, 108 S. Ct. 896, 99 L. Ed. 2d 75 (1988). LBL Oil Co. v. Int l Power Servs., Inc., 777 S.W.2d 390, 390-91 (Tex. 1989) (per curiam); accord Smith v. Lippmann, 826 S.W.2d 137, 138 (Tex. 1992) (per curiam); Lopez v. Lopez, 757 S.W.2d 721, 723 (Tex. 1988) (per curiam); Narciso v. Davenport, No. 01-06-00160-CV, 2007 Tex. App. LEXIS 8152, at *6 (Tex. App. Houston [1st Dist.] Oct. 11, 2007, no pet.) (mem. op.); see In re J.B., 93 S.W.3d 609, 614-15 (Tex. App. Waco 2002, pet. denied).

Due process of law requires notice in accordance with the Texas Rules of Civil Procedure. See, e.g., Mathis v. Lockwood, 166 S.W.3d 743, 746 (Tex. 2005) (per curiam); Finlan v. Peavy, 205 S.W.3d 647, 653-57 (Tex. App. Waco 2006, no pet.); In re J.M.I., 223 S.W.3d 742, 746 (Tex. App. Amarillo 2007, no pet.). Rule of Civil Procedure 21 provides: An application to the court for an order and notice of any hearing thereon, not presented during a hearing or trial, shall be served upon all other parties not less than three days before the time specified for the hearing unless otherwise provided by these rules or shortened by the court. Tex. R. Civ. P. 21. Rule 21 governs notice of trial settings. See, e.g., Jackson v. Jackson, No. 01-04-01215-CV, 2006 Tex. App. LEXIS 9495, at *8 (Tex. App. Houston [1st Dist.] Nov. 2, 2006, no pet.) (mem. op.); Tanksley v. CitiCapital Commercial Corp., 145 S.W.3d 760, 763 (Tex. App. Dallas 2004, pet. denied). The Court may set contested cases for trial only with reasonable notice of not less than forty-five days to the parties of a first setting for trial . . . . Tex. R. Civ. P. 245; see Zicker v. Stewart, No. 03-04-00438-CV, 2006 Tex. App. LEXIS 738, at *9-10 (Tex. App. Austin Jan. 27, 2006, no pet.) (mem. op.). The Rules of Civil Procedure also provide:

Every notice required by these rules, and every pleading, plea, motion, or other form of request required to be served under Rule 21, . . . may be served by delivering a copy to the party to be served, or the party s duly authorized agent or attorney of record, as the case may be, either in person or by agent or by courier receipted delivery or by certified or registered mail, to the party s last known address, or by telephonic document transfer to the recipient s current telecopier number, or by such other manner as the court in its discretion may direct.

Tex. R. Civ. P. 21a. Rule 21a governs notice of trial. See Mathis, 166 S.W.3d at 743; Cliff v. Huggins, 724 S.W.2d 778, 780 (Tex. 1987).

Charlene appeared by her waiver of citation. The record does not show that the trial court shortened the notice period, or directed a manner of service other than those methods of written notice enumerated in Rule of Civil Procedure 21a. The clerk s record does not contain evidence of attempted notice of the final hearing to Charlene. At a hearing on Charlene s objections, David conceded that he only attempted to notify Charlene orally by telephone, not a manner of notice contemplated by Rule 21a.

David points to Charlene s waiver of citation. Charlene s waiver, however, expressly reserve[d] the right to . . . be notified of any hearings in th[e] cause. (I C.R. at 6.) David also points to two other hearings at which Charlene failed to appear. We do not perceive Charlene s failure to appear at other hearings to have any bearing on the failure to give Charlene notice of final hearing.

Charlene did not receive notice of trial, which due process of law required. The trial court erred in signing its final divorce decree. We sustain Charlene s issue.

Having sustained Charlene s sole issue, we reverse and remand.

TOM GRAY

Chief Justice

Before Chief Justice Gray,

Justice Vance, and

Justice Reyna

Reversed and remanded

Opinion delivered and filed August 6, 2008

[CV06]