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Click here for the full text of this decision FACTS:David Gonzales Martinez, who is incarcerated in prison, appeals from a divorce decree. The trial court appointed Martinez’ common law wife, Aracelia Rodriquez, sole managing conservator and changed the last names of their two minor children. Martinez argues that the trial court erred in denying his motion for new trial since he was denied notice of the trial setting as required by due process and Texas Rule of Civil Procedure 245. HOLDING:Reversed and remanded. The first time a contested case is set for trial, the litigants must be afforded at least 45 days prior notice of the date, unless the parties agree otherwise, according to Texas Rule of Civil Procedure 245. But, because it is presumed that a trial court hears a case only after appropriate notice has been given, the obligation lies with the complainant to affirmatively illustrate the lack of notice or compliance with Rule 245. Campsey v. Campsey, 111 S.W.3d 767 (Tex. App. – Fort Worth 2003, no pet.). Here, the reporter’s record establishes that the trial occurred on Oct. 28, 2002. Furthermore, the trial court signed the notice setting the trial for that date on Sept. 19, 2002. Given this, Martinez was afforded only 39 days prior notice of the hearing, as opposed to the 45 days mandated by Rule 245. Furthermore, no one contends that the October 28 setting was anything other than the first for this proceeding or that the parties agreed to that date. Nor does the appellate record depict otherwise. Additionally, Martinez had filed an answer and counterclaim to his wife’s petition on Aug. 27, 2002, and not only sought joint conservatorship of the children but also asked that the children’s names be left unchanged. Thus, it can be said that the proceeding was contested. So too did he aver in an unsworn declaration attached to his motion for new trial that: 1. he was not provided with notice of the hearing before Oct. 28; and 2. he first became aware of the trial date only after receiving a copy of the final judgment from opposing counsel. Denying receipt of notice rebuts the presumption that due notice was afforded the litigant. Smith v. Holmes, 53 S.W.3d 815 (Tex. App. – Austin 2001, no pet.). And, when coupled with the 39-day period between the day the trial court set the cause for trial and the day trial occurred, the court holds that the trial court abused its discretion in denying the motion for new trial. Smith v. Levine, 911 S.W.2d 427 (Tex. App.-San Antonio 1995, writ denied). OPINION:Per curiam.

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