in the Interest of G.J.G., a Child

• Court: Court of Appeals of Texas
• Decided: February 15, 2012
• Docket: 04-11-00424-CV
• Status: Published

Opinion

MEMORANDUM OPINION No. 04-11-00424-CV

IN THE INTEREST OF G.J.G., a Child

From the 224th Judicial District Court, Bexar County, Texas Trial Court No. 2002-CI-15613 Honorable Larry Noll, Judge Presiding

Opinion by: Catherine Stone, Chief Justice

Sitting: Catherine Stone, Chief Justice Sandee Bryan Marion, Justice Steven C. Hilbig, Justice

Delivered and Filed: February 15, 2012

REVERSED AND REMANDED

This is a restricted appeal from an order entered in a suit to modify the parent-child

relationship in which appellant, Jacqueline Kelly, defaulted. We reverse the trial court’s order

and remand the cause to the trial court for a new hearing.

A party can prevail in a restricted appeal only if: (1) it filed notice of the restricted appeal

within six months after the judgment was signed; (2) it was a party to the underlying lawsuit; (3)

it did not participate in the hearing that resulted in the judgment complained of and did not

timely file any postjudgment motions or requests for findings of fact and conclusions of law; and

(4) error is apparent on the face of the record. Ins. Co. of State of Penn. v. Lejeune, 297 S.W.3d 04-11-00424-CV

254, 255 (Tex. 2009). The record demonstrates that Kelly satisfies the first three requirements,

and the appellee, Frederick W. Graham, challenges only the fourth requirement.

Section 105.003(c) requires a record to be made in all suits involving the parent-child

relationship unless waived by the parties with the consent of the court. TEX. FAM. CODE ANN.

§ 105.003 (West 2008). Although the order in question recites the parties waived the making of

a record, Kelly was not present nor represented by counsel at the hearing; therefore, the making

of the record could not be waived as to Kelly, and the trial court erred in consenting to the waiver

of the record. In re K.B.R., No. 07-07-0098-CV, 2008 WL 2467375, at *2 (Tex. App.—

Amarillo June 20, 2008, no pet.) (mem. op.); In re Vega, 10 S.W.3d 720, 722 (Tex. App.—

Amarillo 1999, no pet.). The trial court’s error is reversible and constitutes error on the face of

the record because we cannot evaluate the sufficiency of the evidence to support the trial court’s

order without a reporter’s record. See Stubbs v. Stubbs, 685 S.W.2d 643, 646 (Tex. 1985); Baker

v. Baker, No. 03-09-00455-CV, 2010 WL 2010817, at *1 (Tex. App.—Austin May 18, 2010, no

pet.) (mem. op.); In re K.B.R., 2008 WL 2467375, at *2; In re M.E.P., No. 2-05-148-CV, 2006

WL 417096, at *3 (Tex. App.—Fort Worth Feb. 23, 2006, no pet.) (mem. op.). Accordingly, we

reverse the trial court’s order and remand the cause for a new hearing.

Catherine Stone, Chief Justice

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