Alice Megawati Pringadi v. Richard Heffern

• Court: Court of Appeals of Texas
• Decided: November 3, 2005
• Docket: 03-05-00501-CV
• Status: Published

Opinion

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-05-00501-CV

Alice Megawati Pringadi, Appellant

v.

Richard Heffern, Appellee

FROM THE DISTRICT COURT OF HAYS COUNTY, 207TH JUDICIAL DISTRICT NO. 2004-1622, HONORABLE HOWARD S. WARNER, II, JUDGE PRESIDING

MEMORANDUM OPINION

Alice Megawati Pringadi brings a restricted appeal challenging the portion of a

default divorce decree that names Richard Heffern as the joint managing conservator of their child

A.P.H., grants him the exclusive right to designate the primary residence of the child, and orders

Pringadi to pay child support. Specifically, she contends that the district court erred by failing to

make a record of the hearing in which the court made these determinations. See Tex. Fam. Code

Ann. § 105.003(c) (West 2002). In reply, Heffern does not argue that Pringadi has failed to meet the

technical requirements of a restricted appeal, and the record indicates that a restricted appeal is

appropriate in this case. See Tex. R. App. P. 30; Gold v. Gold, 145 S.W.3d 212, 213 (Tex. 2004);

Stubbs v. Stubbs, 685 S.W.2d 643, 644 (Tex.1985). Rather, Heffern asserts that (1) Pringadi is

estopped from challenging the divorce decree because she accepted the benefits of the decree through

her exercise of possession of A.P.H, or, in the alternative, (2) any error in failing to make a record

of the hearing was harmless because the parents were named joint managing conservators. First, we conclude that Pringadi’s exercise of her right to possession of A.P.H.

pursuant to the terms of the divorce decree was not an acceptance of the benefits of the divorce

decree. The divorce decree’s possession order does not afford Pringadi a benefit, but rather it limits

her rights with regard to her child. See Hawkins v. Hawkins, 999 S.W.2d 171, 178 (Tex.

App.—Austin 1999, no pet.) (no acceptance of benefit of divorce decree through acquiescence to

child-support order). Second, the family code’s requirement of a record in a suit affecting the parent-

child relationship is mandatory and is not subject to harmless error review. See Stubbs, 685 S.W.2d

at 644; Rogers v. Rogers, 561 S.W.2d 173,173-74 (Tex. 1978); In re Vega, 10 S.W.3d 720, 722

(Tex. App.—Amarillo 1999, no pet.); G.S.K. v. T.K.N., 940 S.W.2d 797, 799 (Tex. App.—El Paso

1997, no writ).

Because Pringadi (1) brought her appeal within six months of the judgment, (2) was

a party to the underlying suit, (3) did not participate in the hearing on the divorce decree, and (4) has

demonstrated reversible error in the trial court’s failure to record the hearing, we reverse the district

court’s judgment and remand for a new trial on the parent-child issues of conservatorship,

possession, and support.1 See Stubbs, 685 S.W.2d at 644-45.

Bea Ann Smith, Justice

Before Justices B. A. Smith, Patterson and Puryear

Affirmed in Part; Reversed and Remanded in Part

Filed: November 3, 2005

1 Pringadi has not challenged the granting of divorce or the division of property, so those portions of the divorce decree are affirmed and will not be the subject of the hearing on remand.