In Re PC
339 S.W.3d 322
| Tex. App. | 2011Background
- Irma Primero and Juan Castillo married in 1972, later divorced in Mexico with Primero having custody per Mexican decree and Castillo ordered to pay child support.
- They moved to El Paso, Texas, where Castillo filed a 2004 motion to modify custody; court appointed Castillo sole managing conservator with exclusive right to designate residency and ordered Primero to pay $187.50 monthly child support.
- Primero filed a 2007 petition to modify child support; cross-motions and appeals followed; final hearing scheduled for February 3, 2009.
- On February 3, 2009, the court, after allowing limited representation for Primero on child support, orally set Castillo's cross-motion to modify visitation for March 2, 2009; no written notice or order setting the hearing was issued or entered.
- On March 2, 2009, a hearing was held without Primero or her former counsel present; court granted modification of visitation with a crisis-center supervision caveat, but the written order lacked specifics; no proper notice was provided for the March hearing per due process requirements.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the visitation modification violated due process due to lack of notice. | Primero: no proper notice given. | Castillo: disputed claim; consistent with court's authority. | Reversed for lack of notice; remanded for proceedings. |
Key Cases Cited
- Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306 (1950) (fundamental due process requires notice reasonably calculated to apprise interested parties)
- In re Brilliant, 86 S.W.3d 680 (Tex.App.-El Paso 2002) (notice requirements in contested matters; due process)
- Langdale v. Villamil, 813 S.W.2d 187 (Tex.App.-Houston [14th Dist.] 1991) (notice must be provided in contested settings; reversible error when absent)