In the Matter of the Marriage of Lenore Hernandez Mowafy and Mohamed Rizk Mowafy and in the Interest of R.M.M., a Child v. the State of Texas
Opinion
In The Court of Appeals Seventh District of Texas at Amarillo
No. 07-26-00166-CV
IN THE MATTER OF THE MARRIAGE OF LENORE HERNANDEZ MOWAFY AND MOHAMED RIZK MOWAFY AND IN THE INTEREST OF R.M.M., A CHILD
On Appeal from the 137th District Court Lubbock County, Texas Trial Court No. DC-2023-FM-2517, Honorable John J. “Trey” McClendon III, Presiding
July 28, 2026 MEMORANDUM OPINION Before PARKER, C.J., and YARBROUGH and PRATT, JJ.
Appellant, Mohamed Rizk Mowafy, appeals from the trial court’s Default Final
Decree of Divorce. Through four issues, he argues the trial court reversibly erred. We
reverse the judgment of the trial court and remand this cause for further proceedings
consistent with this opinion.
BACKGROUND
Appellant’s wife, Lenore Hernandez Mowafy, filed a petition for divorce on
December 6, 2023. Appellant filed an Original Answer and Counterpetition on January 26, 2024. On October 9, 2025, the trial court sent to the parties notice of the final hearing
to be held on November 19, 2025. Mohamed did not appear at the hearing, and the trial
court entered a post-answer Default Final Decree of Divorce.
Thereafter, Mohamed filed an objection to the entry of the decree and moved to
set aside the default judgment challenging, among other things, proper notice under Rule
245.1 He later also filed a motion for new trial that was denied after a hearing. By this
appeal, Mohamed seeks reversal of the Default Final Decree of Divorce signed December
19, 2025, and seeks remand for a full trial on the merits.2
ANALYSIS
By four issues, Mohamed argues the trial court reversibly erred. Our disposition
of his issue concerning notice is dispositive.3 We do note, however, that the trial court
entered a post-answer default judgment in this matter, not a no-answer default judgment
as Mohamed seems to believe.4
1 Mohamed has, therefore, preserved this issue for our review. In re J.(B.B.) M., 955 S.W.2d 405, 408 (Tex. App.—San Antonio 1997, no pet.) (discussing waiver when party fails to object to lack of notice under Rule 245). We do note he did not make this argument during the hearing on his motion for new trial. In that hearing, he simply told the court he never received a notice. However, it is not required that this point be raised in a motion for new trial. Rodriguez v. Marcus, 564 S.W.3d 216, 222 (Tex. App.—El Paso 2018, no pet.). 2 Lenore did not file an appellee’s brief.
3 We thus do not reach Mohamed’s remaining issues. TEX. R. APP. P. 47.1. 4 In his appellate brief, Mohamed seems to understand there is a difference between the two types
of default. He nevertheless advances arguments applicable to a no-answer default judgment. He argues the trial court erred by rendering the default divorce decree when his answer had been on file for 22 months. He argues that because he had answered the suit, the trial court could not enter a no-answer default judgment. Mohamed is correct on that point but fails to realize the trial court entered a post-answer default judgment, not a no-answer default judgment, because he failed to appear at the final hearing.
2 “A post-answer default is one rendered when the defendant has filed an answer,
but fails to appear at trial.” Mahand v. Delaney, 60 S.W.3d 371, 373 (Tex. App.—Houston
[1st Dist.] 2001, no pet.). When a party has answered in a divorce case, they are entitled
to notice of trial. Turner v. Ward, 910 S.W.2d 500, 505 (Tex. App.—El Paso 1994, no
writ). See also In re Marriage of Runberg, 159 S.W.3d 194, 197 (Tex. App.—Amarillo
2005, no pet.) (noting same). A plaintiff may not take a post-answer default judgment
against a defendant on less than 45 days’ notice of the final hearing; otherwise, the post-
answer default judgment is ineffectual and should be set aside. Highsmith v. Highsmith,
587 S.W.3d 771, 777 (Tex. 2019); Hildebrand v. Hildebrand, No. 01-18-00933-CV, 2020
Tex. App. LEXIS 5576, at *10 (Tex. App.—Houston [1st Dist.] July 21, 2020, no pet.)
(mem. op.).
It is also presumed that a trial court will hear a case only when notice has been
given to the parties. Id. If the record affirmatively demonstrates less than 45 days’ notice
was provided, the presumption of proper notice will no longer be taken as true. In re
Hughes, No. 07-08-00292-CV, 2009 Tex. App. LEXIS 3735, at *7 (Tex. App.—Amarillo
May 29, 2009, no pet.) (mem. op.). If the record does not so establish, a party challenging
a trial court’s judgment for lack of notice has the burden of proving there was no notice.
Carter v. Carter, 225 S.W.3d 649, 651 (Tex. App.—El Paso 2006, no pet.). An appellant
must affirmatively show a lack of notice, which generally requires affidavits or other
competent evidence showing that he did not receive proper notice. Blanco v. Bolanos,
20 S.W.3d 809, 811 (Tex. App.—El Paso 2000, no pet.).
In this case, Mohamed filed an answer denying the allegations in Lenore’s petition
for divorce, placing in issue the contested matters raised. Highsmith, 587 S.W.3d at 777; 3 Hildebrand, 2020 Tex. App. LEXIS 5576, at *10. Therefore, Mohamed had a
constitutional due process right to receive adequate notice of the final hearing. Id.
Mohamed argues the notice period for the final hearing was three days short of the
statutory minimum, i.e., 42 days’ notice rather than the required 45 days’ notice. See
TEX. R. CIV. P. 245. We agree.
The appellate record does not contain the notice of the trial setting.5 However, the
trial court stated at the outset of the final hearing, held November 19, 2025, that “there’s
an Order Setting Final Hearing that was filed on October 9th of 2025.” The period
between the date of the notice and the date of the final hearing was 42 days. Therefore,
the information before us establishes Mohamed did not receive 45 days’ notice as
required. See A&A Constr. Servs., LLC v. Blevins, No. 07-13-00251-CV, 2014 Tex. App.
LEXIS 4538, at *10–11 (Tex. App.—Amarillo April 24, 2014, no pet.) (mem. op.) (noting
that even if defendant received notice, he did not receive 45 days’ notice and thus, the
trial court’s default judgment violated his due process rights). See also Rodriguez v.
Marcus, 564 S.W.3d 216, 222 (Tex. App.—El Paso 2018, no pet.) (notice did not appear
in the record but record affirmatively demonstrated less than 45 days’ notice was provided
as required).
5 Mohamed included the file-stamped notice in an appendix filed with his appellate brief. Generally,
an appellate court cannot consider documents attached to a brief as an exhibit or in an appendix if the same documents do not appear in the record. Rodriguez, 564 S.W.3d at 222. However, some courts have found that an attachment to a pleading or brief definitively establishing the lack of notice may suffice as proof. See Custom-Crete, Inc. v.
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In the Matter of the Marriage of Lenore Hernandez Mowafy and Mohamed Rizk Mowafy and in the Interest of R.M.M., a Child v. the State of Texas (In the Matter of the Marriage of Lenore Hernandez Mowafy and Mohamed Rizk Mowafy and in the Interest of R.M.M., a Child v. the State of Texas) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.