Summary
holding husband participated in the hearing because he approved (via an agent) the final decree before the trial court signed it
Summary of this case from In re ChildOpinion
No. 11-02-00036-CV.
January 16, 2003.
Appeal from Harris County.
Panel consists of: ARNOT, C.J., and WRIGHT, J., and McCALL, J.
Memorandum Opinion
This is a restricted appeal from an "Agreed Final Decree of Divorce." The clerk's record reveals that Brenda T. McNeely filed an original petition for divorce on April 25, 2001. Her husband, Joe D. McNeely, was served with the petition in Mississippi on May 15, 2001. The clerk's record does not contain an answer filed by Joe. The trial court entered the agreed final decree of divorce on July 9, 2001. Joe filed a notice of restricted appeal from the decree on January 4, 2002. He raises five issues on appeal. We affirm.
A restricted appeal is a direct attack on the judgment of a trial court. See TEX.R.APP.P. 30; O'Neal v. O'Neal, 69 S.W.3d 347 (Tex.App.-Eastland 2002, no pet'n). A restricted appeal is an appropriate remedy where the notice filed within six months of the date of judgment by a party to the suit who did not participate at trial and the error complained of must be apparent from the face of the record. Norman Communications v. Texas Eastman Company, 955 S.W.2d 269, 270 (Tex. 1997). We find that the "participation" element is dispositive of the issues in this appeal.
The agreed final decree of divorce states that the trial court "considered" the agreement of the parties on June 29, 2001. The decree reflects that no record of this proceeding was made by the court reporter. The decree states as follows with respect to Joe's participation:
Respondent, Joe D. McNeely, has made a general appearance and has agreed to the terms of this judgment to the extent permitted by law, as evidenced by his signature appearing below.
* * *
The Court finds that the parties have entered into a written agreement as contained in this decree by virtue of having approved this decree as to both form and substance. To the extent permitted by law, the parties stipulate the agreement is enforceable as a contract. The Court approves the agreement of the parties as contained in this Final Decree of Divorce.
There are signature spaces at the end of the decree for Brenda and Joe located under a heading which reads "APPROVED AND CONSENTED TO AS TO BOTH FORM SUBSTANCE." There is a signature for Joe which appears in his signature space accompanied by the notation "with permission of Joe D. McNeely." There is also a faint "X" which appears in Joe's signature space. The dated signature of "Jerry Brewer" appears after Joe's signature space. The decree concludes as follows:
This document was signed in the presence of:
s/Jeremy Brewer 6/23/01 Witness
I, s/Jeremy Brewer, personally witnessed Joe D. McNeely give permission to s/Jerry Brewer, to sign his name to this document as acceptance of the agreement set forth therein. 6/23/01
The record before us indicates that Joe authorized Jerry Brewer to sign Joe's name to the decree to indicate Joe's acceptance of its terms. As the court stated in In re Barber, 982 S.W.2d 364, 366 (Tex. 1998), "A signature may legally be made not only by the signer personally, but by and through someone duly authorized by the signer." We, therefore, determine that Joe agreed to the terms of the decree. The question pertaining to Joe's participation is resolved by examining the holdings in Stubbs v. Stubbs, 685 S.W.2d 643 (Tex. 1985), and Blankinship v. Blankinship, 572 S.W.2d 807 (Tex. Civ. App.-Houston [14th Dist.] 1978, no writ).
While Stubbs and Blankinship are divorce cases involving writ of error appeals, the notes and comments to Rule 30 provided that restricted appeals replace writ of error appeals and that "[s]tatutes pertaining to writ of error appeals to the court of appeals apply equally to restricted appeals." The spouses in Stubbs executed an agreement incident to divorce prepared by the husband's attorney. Stubbs v. Stubbs, supra at 644. The wife also executed a waiver of citation. She did not appear at the trial court proceedings when the trial court rendered a decree of divorce. The wife subsequently pursued an appeal by writ of error. The court held that the wife's acts of signing the waiver of citation and agreement incident to divorce were not sufficient acts of participation to preclude her writ of error appeal. Stubbs v. Stubbs, supra at 645.
The Texas Supreme Court discussed Blankinship in reaching its holding in Stubbs. The husband in Blankinship executed a waiver of citation which indicated that he was entering an appearance for all purposes and waiving the making of a record of testimony. Blankinship v. Blankinship, supra at 808. He also indicated his approval of the divorce decree by signing it prior to its entry by the trial court. The court of appeals determined that the husband had sufficiently participated in the proceedings so as to preclude his writ of error appeal. Blankinship v. Blankinship, supra at 808. The supreme court expressly stated its approval of Blankinship in Stubbs.
The facts in this appeal are closer to the facts in Blankinship than those in Stubbs. As was the case in Blankinship, Joe approved the final decree of divorce prior to its entry by the trial court. This act constituted participation "in the hearing that resulted in the judgment complained of"under Stubbs and Blankinship. See Rule 30. Joe also waived the making of the record under the terms of the decree. While he did not execute a waiver of citation, Joe was personally served with process making the execution of a waiver unnecessary. Joe's five appellate issues are overruled.
The judgment of the trial court is affirmed.