Opinions, October 4, 2016: Noticing Trials & Absence of Evidence

The First District Court of Appeals released its memorandum opinion in Richardson v. Sims, No. 01-15-01115-CV this morning. In September 2014, the father of the child filed an original SAPCR. The trial court held a temporary orders hearing which both mother and father attended. The mother was granted primary and the father was ordered to pay child support.

In February 2015, the father moved to modify the temporary orders because the mother had taken the child to Florida in violation of the temporary orders. The trial court modified the TO to give father primary and suspended his child support obligations. The mother did not appear at the hearing even though she’d received notice.

On June 8, 2015, the case was called for trial. The father was present with his counsel but mother did not appear. Trial proceeded and, after father’s testimony, a default judgment was entered appointing both parents JMC, with father as primary, ordering mother to pay child support and that mother’s visitation be supervised. The judgment also stated that the mother had made a general appearance and was notified of trial but failed to appear.

The mother filed a restricted appeal within six months of the default judgment. Her sole issue on appeal was that she did not receive notice of the June 8, 2015 trial setting as required by TRCP 245.

There is a presumption that a trial court hears a case only after proper notice to the parties and the appellant challenging that presumption has a heavy burden. The trial court provides the parties notice when a contested case is set for trial and the rules do not require the trial court to include documentary evidence in the record that notice was sent. Thus, if the record is silent as to whether notice was given, no error appears on the face of the record. A recitation of due notice in the judgment constitutes some evidence that proper notice was given.

In this case, the judgment which stated that proper notice was given constituted some evidence of proper notice. The mother argued that clerk’s notice does not contain a notice of the trial setting, but, the Court of Appeals noted, this is not proof she did not receive notice of the trial setting as the clerk’s record typically does not include notice of trial setting.

In other words, absence of evidence is not evidence of absence. Because there is no evidence affirmatively stating that the mother did not receive notice of the trial, the Court of Appeals held it must affirm the default.



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