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Cox v. Cox

To determine whether appellant meets the non-participation requirement of a restricted appeal, the court considered whether appellant took part in the decision-making event that resulted in the adjudication of his rights. Because the final divorce decree contains substantive differences from the written settlement agreement, appellant meets the non-participation requirement of a restricted appeal. Austin Court of Appeals, No. 03-08-00650-CV, 08-28-2009

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OPINION

This is a restricted appeal from a default judgment granting a final divorce decree between appellant John Cox and appellee Joy Cox.*fn1 John argues that there is error on the face of the record in that (1) he was not served with the first amended petition; (2) there was no agreement to the terms of the final divorce decree; and (3) the evidence was insufficient to support the trial court’s orders regarding the division of the marital estate, custody and control of the couple’s minor children, the spousal-maintenance award, and the award of attorney’s fees. Joy contends that John does not meet the requirements of a restricted appeal because he participated in the proceedings below. In the alternative, Joy argues that there is no error on the face of the record, except as to the award of spousal maintenance. Having determined that John meets the requirements of a restricted appeal because he did not participate in the proceedings below and that there is error on the face of the record in that John was not served with the first amended petition, we reverse the default judgment and remand the cause to the trial court for further proceedings consistent with this opinion.

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