Opinion
03-22-00666-CV
08-29-2023
Cheryl Lynn Kemp, Appellant v. Brian Thomas Kemp, Appellee
FROM THE 200TH DISTRICT COURT OF TRAVIS COUNTY NO. D-1-FM-21-006443, THE HONORABLE J. ANDREW HATHCOCK, JUDGE PRESIDING.
Before Baker, Kelly, and Smith, Justices.
MEMORANDUM OPINION
Chari L. Kelly, Justice.
Cheryl Lynn Kemp brings a restricted appeal of a decree of divorce dissolving her marriage to Brian Thomas Kemp and dividing the marital estate. In two issues, Cheryl asserts that there is error on the face of the record that requires reversal of the trial court's judgment. We will reverse the trial court's decree of divorce and remand the case to the trial court for further proceedings.
Because the parties share a surname, we refer to them by their given names for clarity.
BACKGROUND
Cheryl and Brian were married in January 2004. In October 2021, Brian filed a petition for divorce. Cheryl timely filed an answer in which she expressly objected to the assignment of the case to an associate judge for a trial on the merits or presiding at a jury trial. See Tex. Fam. Code § 201.005(c) (providing that if objection to associate judge hearing trial on merits or presiding at jury trial is timely filed, referring court shall hear trial on merits or preside at jury trial). Thereafter, Cheryl's attorney withdrew from the case and Cheryl represented herself pro se. On April 25, 2022, the case was tried before an associate judge.
Cheryl did not appear at the trial. On May 27, 2022, the associate judge signed a final decree of divorce. Cheryl did not file a post-judgment motion or request for findings of fact and conclusions of law. Cheryl filed a notice of restricted appeal on October 21, 2022.
DISCUSSION
A restricted appeal is a direct attack on a judgment. Roventini v. Ocular Scis., Inc., 111 S.W.3d 719 721 (Tex. App.-Houston [1st Dist.] 2003, no pet.). To prevail on her restricted appeal, Cheryl must establish that: (1) she filed notice of the restricted appeal within six months after the judgment was signed; (2) she was a party to the underlying lawsuit; (3) she did not participate in the hearing that resulted in the judgment complained of and did not timely file a post-judgment motion or request for findings of fact and conclusions of law; and (4) error is apparent on the face of the record. See Tex. R. App. P. 30; Ex parte E.H., 602 S.W.3d 486, 495 (Tex. 2020). Only the fourth element is at issue here. The face of the record, for purposes of a restricted appeal, consists of all the papers that were before the trial court when it rendered its judgment. See Alexander v. Lynda's Boutique, 134 S.W.3d 845, 848-49 (Tex. 2004).
The record reflects that Cheryl objected to the assignment of the case to an associate judge for a trial on the merits. See Tex. Fam. Code § 201.005(c). This objection was included in Cheryl's original answer and, consequently, was timely. See id. (providing that party objecting to associate judge must file objection before 10th day after date party receives notice that associate judge will hear trial). Nevertheless, the case was tried before an associate judge, in contravention of the Texas Family Code's provision that "[i]f an objection is filed, the referring court shall hear the trial on the merits or preside at a jury trial." Id. (emphasis added). "If one of the parties files a timely written objection to the associate judge presiding over trial, the case shall be tried by the referring judge rather than the associate judge." In re I.J.R., 05-09-00565-CV, 2011 WL 711639, at *3 (Tex. App-Dallas Mar. 2, 2011, no pet.) (mem. op.). A trial court has no discretion to overrule a timely objection to the referral. In re Baker, 495 S.W.3d 393, 397 (Tex. App-Houston [14th Dist] 2016, orig. proceeding). Thus, there is error on the face of the record.
Brian does not dispute that Cheryl filed an objection to an associate judge presiding over trial in her original answer. Relying on In re E.G., Brian maintains, however, that because Cheryl did not urge any subsequent objection to the associate judge presiding over the trial, she has failed to preserve this error, and it cannot serve as a basis for sustaining her restricted appeal. See In re. E.G., No. 07-20-00189-CV, 2020 WL 7828803, at *4 (Tex. App - Amarillo Dec. 21, 2020, pet. denied) (mem. op.); see also Tex. R. App. P. 33.1. We disagree. Courts have refused to apply the waiver rule in a restricted appeal. See e.g., Allied Bank of Dall. v. Pleasant Homes, Inc., 757 S.W.2d 460, 463 (Tex. App-Dallas 1988, writ denied). An objection requirement would vitiate appeals by restricted appeal because a restricted appeal is designed to protect parties who could not object because they were not present at the trial proceedings. See Brown v. Brookshires Grocery Stores, 10 S.W.3d 351, 355 (Tex. App-Dallas 1999, pet. denied) (considering waiver argument in writ-of-error procedure, which is now the restricted appeal procedure in Texas Rule of Appellate Procedure 30). It is for this reason that Brian's reliance on In re E.G. is misplaced. In re E.G. was not a restricted appeal; the appellant did participate in the hearing that resulted in the judgment she complained of and could have made an objection at that hearing. 2020 WL 7828803, at *4-5. The appellant complaining about the associate judge's presiding over the trial had failed to file her own objection to the associate judge before the hearing and neither she nor the objecting party had, during the hearing, brought the objection to the court's attention. Id. Under those circumstances, the court of appeals held that the appellant had failed to preserve her complaint about the associate judge for appellate review. Id. The present case is not analogous, and we decline to apply the waiver rule in this restricted appeal.
Because the case was tried before an associate judge despite a timely objection, error is apparent on the face of the record. We sustain Cheryl's second issue on appeal. Because of our disposition of this issue, it is not necessary to reach Cheryl's complaints regarding the divorce decree's property division.
CONCLUSION
For the reasons set forth in this opinion, we reverse the trial court's final decree of divorce and remand the cause to the trial court for further proceedings.
Reversed and Remanded.