Randal B. Ward v. Suzanne Banowsky McCaskill, 03-17-00543-CV

Background

This is a restricted appeal by respondent Randal B. Ward from a default final divorce decree signed April 26, 2017 awarding petitioner Suzanne Banowsky McCaskill divorce, property division, and a $19,443.12 reimbursement judgment.
Ward had appeared in the case earlier and was represented by counsel (Marilee Brown), who withdrew by court order dated April 12, 2016. That order listed Ward’s last known address as 722 W. 30th Street, Houston, TX 77018 and ordered notices to be delivered in person or sent to that Houston address by certified and regular mail.
Petitioner’s counsel (Wigington) certified on the record at the April 26, 2017 hearing that she had sent Ward notice (by certified and regular mail) to the address in the withdrawal order. The clerk’s record shows, however, that notices were mailed to 958 Coyote Ridge Dr., Spring Branch, TX — the petitioner’s address — not the Houston address.
The trial court proceeded with a post-answer default hearing in Ward’s absence, accepted petitioner’s testimony, and rendered the Final Decree and money judgment. The reporter’s record and clerk’s papers reflect the notice discrepancy.
Appellant Ward timely filed a restricted appeal within six months, claiming he did not receive notice of the April 26 hearing and that lack of notice deprived him of due process under the Fourteenth Amendment, entitling him to have the default judgment set aside and a new trial.

Issues

Issue	Plaintiff's Argument (McCaskill)	Defendant's Argument (Ward)	Held
Whether Ward received constitutionally adequate notice of the April 26, 2017 default hearing	Wigington stated on the record she mailed notice to the address in the withdrawal order and represented the case was ripe for default; court relied on counsel’s representation	Ward points to clerk’s record showing notices were mailed to 958 Coyote Ridge (petitioner’s address), not the Houston address required by the withdrawal order; asserts he did not receive notice	On the face of the record, Ward has affirmatively shown he did not receive notice; counsel’s on‑the‑record statements conflict with clerk’s filings
Whether lack of notice of a post-answer default hearing violates due process and requires setting aside the default without satisfying Craddock meritorious‑defense prongs	Petitioner urged court to proceed after counsel’s representation that notice was given; argued relief sought was supported by testimony	Ward invoked Peralta and related authority: once a party who appeared lacks notice of the trial, due process requires setting aside default and a new trial without requiring demonstration of meritorious defense	Court of appeals brief argues precedent establishes lack of notice to a post‑appearance defendant satisfies first Craddock factor and due process precludes application of the other Craddock requirements; Ward entitled to relief (appellate relief sought)
Whether error is apparent on the face of the record to support restricted appeal	Petitioner relies on reporter’s record showing on‑the‑record assertions of notice and default	Ward notes clerks’ documents (certificates, withdrawal order) show differing last known addresses and misdirected mail, creating an apparent facial error	The brief argues error is apparent on the face of the record because the clerk’s file shows notice was sent to the wrong address

Key Cases Cited

Alexander v. Lynda's Boutique, 134 S.W.3d 845 (Tex. 2004) (elements and standards for restricted appeals)
General Elec. Co. v. Falcon Ridge Apartments, Joint Venture, 811 S.W.2d 942 (Tex. 1991) (face-of-record requirement in restricted appeals)
Peralta v. Heights Med. Ctr., Inc., 485 U.S. 80 (U.S. 1988) (due‑process requirement of notice reasonably calculated to apprise interested parties)
LBL Oil Co. v. International Power Servs., Inc., 777 S.W.2d 390 (Tex. 1989) (post‑answer default and due‑process notice; setting aside default when notice absent)
Lopez v. Lopez, 757 S.W.2d 721 (Tex. 1988) (remanding for new trial where defendant lacked actual or constructive notice)
Ginn v. Forrester, 282 S.W.3d 430 (Tex. 2009) (face‑of‑record review in restricted appeal context)