Restricted Appeal Excludes Postjudgment Evidence | Romero v. Romero (2026)

Romero v. Romero, 05-25-00968-CV, November 09, 2026.

On appeal from 59th Judicial District Court, Grayson County, Texas

Synopsis

In a restricted appeal, the face of the record includes only the materials before the trial court when it rendered judgment. Documents filed after a divorce decree cannot establish separate-property ownership or otherwise demonstrate reversible error under Texas Rule of Appellate Procedure 30.

Relevance to Family Law

Romero underscores a critical limitation on restricted appeals from default divorce decrees: appellate counsel cannot repair an undeveloped trial-court record with postjudgment deeds, tracing documents, or other evidence. Although a default divorce remains subject to evidentiary review because Texas Family Code section 6.701 prohibits taking the petition as confessed, the appellant must identify error within the record that existed when judgment was rendered. For property litigators, the practical consequence is substantial—separate-property evidence must be admitted before judgment, and the record must affirmatively demonstrate any alleged notice defect, classification error, or abuse of discretion.

Case Summary

Fact Summary

Francis Romero filed for divorce and alleged that the marriage had become insupportable because of Oscar Romero Jr.’s cruelty. Husband answered the petition. After the case was dismissed for want of prosecution, the trial court reinstated it and entered an order expressly setting the final hearing for February 3, 2025.

Husband, who was incarcerated, did not appear for the final hearing. At the outset of trial, Wife’s counsel expressed concern about whether counsel had adequate proof that Husband had received notice of the hearing. The trial court proceeded with the prove-up, however, and the record included the reinstatement order containing the trial setting. The final decree also recited that Husband had received due notification of the hearing date.

Wife testified regarding Husband’s violence against her and the resulting criminal proceedings. Evidence showed that Husband had been convicted of kidnapping and continuous family violence and sentenced to 50 years’ imprisonment. The trial court also admitted a protective order and the deed to the marital home. Wife requested a disproportionate division of the community estate, including an award of the home, based on Husband’s cruel treatment.

The trial court granted the divorce and awarded the home to Wife. Husband later filed a restricted appeal, arguing that the home was his separate property. To support that contention, he relied on documents included in a supplemental clerk’s record but submitted to the trial court only after the decree had been rendered.

Issues Decided

• Whether Husband satisfied the jurisdictional prerequisites for a restricted appeal under Texas Rules of Appellate Procedure 26.1(c) and 30.

• Whether documents filed after rendition of the divorce decree were part of the “face of the record” for purposes of establishing error in a restricted appeal.

• Whether the decree’s disproportionate division of the marital estate, including the award of the home to Wife, demonstrated error apparent on the face of the record.

• Whether the record affirmatively established a notice defect requiring reversal, even though Husband did not present lack of notice as his appellate issue.

Rules Applied

• Restricted-appeal requirements. A restricted appellant must establish that: (1) the notice of restricted appeal was filed within six months after judgment; (2) the appellant was a party to the underlying action; (3) the appellant did not participate in the hearing resulting in the challenged judgment and did not timely file a qualifying postjudgment motion or request for findings and conclusions; and (4) error is apparent on the face of the record. Tex. R. App. P. 26.1(c), 30; Alexander v. Lynda’s Boutique, 134 S.W.3d 845, 848 (Tex. 2004).

• Jurisdictional and merits components. The first three restricted-appeal requirements are jurisdictional; the requirement of error apparent on the face of the record concerns the appeal’s merits. Ex parte E.H., 602 S.W.3d 486, 497 (Tex. 2020).

• Scope of the record. The face of the record consists of the papers on file with the trial court when judgment was rendered. Evidence not before the trial court at that time cannot be considered. Clamon v. DeLong, 477 S.W.3d 823, 825 (Tex. App.—Fort Worth 2015, no pet.).

• Default divorces require evidence. A divorce petition may not be taken as confessed merely because the respondent fails to answer or appear. Tex. Fam. Code § 6.701. The petitioner must introduce sufficient evidence supporting the material allegations, and the resulting decree may be challenged for legal or factual insufficiency. Ratisseau v. Ratisseau, 44 S.W.3d 695, 697 (Tex. App.—Houston [14th Dist.] 2001, pet. dism’d by agr.); Watson v. Watson, 286 S.W.3d 519, 523 (Tex. App.—Fort Worth 2009, no pet.).

• Just-and-right division. The trial court must divide the parties’ estate in a manner it deems just and right, with due regard for each party’s rights. Tex. Fam. Code § 7.001. The trial court has broad discretion, and reversal is warranted only when the division is manifestly unjust and unfair. Murff v. Murff, 615 S.W.2d 696, 698–99 (Tex. 1981); Bradshaw v. Bradshaw, 555 S.W.3d 539, 543 (Tex. 2018).

• Silence does not establish error. An incomplete or silent record does not affirmatively demonstrate error apparent on the face of the record. An appellate court will not presume that the evidence presented at the default hearing was insufficient to support the property division. Ginn v. Forrester, 282 S.W.3d 430, 433 (Tex. 2009).

• Notice presumptions. A trial court is generally presumed to hear a case only after the parties have received proper notice. A restricted appellant must rebut that presumption by affirmatively demonstrating lack of notice from the face of the record. Silence concerning the transmission of notice is insufficient. Alexander, 134 S.W.3d at 849–50.

Application

The court first determined that Husband had invoked restricted-appeal jurisdiction. The decree was signed on February 3, 2025, and Husband filed his notice of restricted appeal on July 29, 2025, within the six-month deadline. He was a party to the divorce but did not participate in the final hearing. He also did not file a postjudgment motion seeking substantive relief. A postjudgment document styled as a motion to proceed pro se did not disqualify him because it was not the type of substantive postjudgment motion contemplated by Rule 30.

The decisive problem was the fourth requirement—error apparent on the face of the record. Husband claimed that the marital home awarded to Wife was his separate property, but the documents on which he relied were sent to the trial court after rendition of the decree. Under Clamon, those documents were outside the permissible restricted-appeal record. Their later inclusion in a supplemental clerk’s record did not make them evidence that had been before the trial court when it decided the case.

The court also distinguished the availability of an evidentiary challenge from the existence of one. Because section 6.701 applies to divorce proceedings, Wife was required to present evidence despite Husband’s failure to appear, and a restricted appeal could have included a legal- or factual-sufficiency challenge to that evidence. Husband, however, did not raise a sufficiency challenge. Instead, he attempted to prove separate ownership through postjudgment materials that the appellate court could not consider.

On the record properly before it, the court found no apparent error in awarding the home to Wife. Wife had introduced the deed and requested a disproportionate division based on Husband’s cruel treatment. Evidence of family violence, serious criminal convictions, a lengthy prison sentence, and a protective order supported the requested division. The mere fact that the decree awarded Wife a disproportionate share did not establish an abuse of discretion because Texas law imposes no fixed permissible percentage for a just-and-right division.

The court separately addressed the hearing-notice circumstances. Although Wife’s counsel expressed concern about proof of notice, Husband did not argue on appeal that he lacked notice. The reinstatement order contained the final-hearing date, and the decree recited that Husband had received due notification. His incarceration did not itself establish lack of notice, nor did it impose on the trial court a duty to investigate whether his personal appearance was necessary. At most, the record was ambiguous or silent concerning additional notice that Wife’s counsel intended to provide, and such silence did not rebut the presumption of proper notice.

Holding

The Fifth Court of Appeals held that Husband satisfied the first three, jurisdictional requirements for a restricted appeal. His notice was timely, he was a party to the underlying divorce, and he did not participate in the dispositive hearing or file a disqualifying postjudgment motion.

The court further held that documents submitted after rendition of the decree were not part of the face of the record. Those materials therefore could not establish that the marital home was Husband’s separate property or demonstrate reversible error in the trial court’s property division.

The disproportionate property division did not, standing alone, show error apparent on the face of the record. Because Husband did not present a sufficiency challenge and the permissible record did not affirmatively establish mischaracterization or an abuse of discretion, the award of the home to Wife was affirmed.

Finally, the record did not affirmatively demonstrate lack of notice. The court therefore affirmed the final divorce decree.

Practical Application

For the spouse seeking a default divorce, Romero reinforces the need to conduct a genuine evidentiary prove-up. Counsel should introduce admissible evidence supporting the grounds for divorce, characterization and value of material assets, requested conservatorship terms, child-support findings, reimbursement claims, and any factors supporting a disproportionate property division. The respondent’s absence does not convert pleaded allegations into evidence.

For the spouse asserting separate property, the case illustrates the danger of allowing judgment to be rendered without placing tracing evidence in the record. Deeds, closing documents, premarital account statements, inheritance records, gift instruments, and expert tracing analyses filed after judgment cannot establish error in a restricted appeal. Separate-property status must generally be established by clear and convincing evidence presented before rendition.

For appellate counsel, the first task should be to determine the exact contents of the record as it existed when judgment was rendered. A supplemental clerk’s record may supply an omitted document that was timely filed, but it cannot transform a postjudgment submission into pre-judgment evidence. The filing date and the date of rendition are therefore essential to issue selection.

Counsel should also distinguish an evidentiary challenge from an attempt to add evidence. A restricted appellant may challenge the legal or factual sufficiency of the evidence already presented in a default divorce. The appellant may not, however, use new evidence to contradict the existing record or establish a different property characterization.

Notice issues require the same record discipline. Counsel should identify affirmative proof of nonservice or lack of notice within the face of the record. An unexplained omission, a silent clerk’s record, or an ambiguous statement about providing “better” notice may not overcome the presumptions favoring the judgment—particularly when another order in the record contains the trial setting.

Finally, incarceration does not independently excuse nonappearance or establish a notice violation. An incarcerated litigant should timely request a bench warrant, remote appearance, deposition, or another reasonable means of participation and should explain why the requested method is necessary. Trial counsel should obtain rulings on those requests so that any complaint is preserved in the record.

Checklists

Proving a Default Divorce

• Confirm that the respondent received legally sufficient notice of the final hearing.
• Place the hearing notice, service evidence, and relevant scheduling orders in the trial-court file.
• Present evidence supporting the statutory grounds for divorce.
• Prove the characterization and value of significant assets and liabilities.
• Offer deeds, account statements, loan records, and tracing exhibits into evidence.
• Present evidence supporting each requested disproportionate-division factor.
• Obtain express rulings on exhibit admission.
• Ensure that the reporter’s record identifies every admitted exhibit.
• Request findings of fact and conclusions of law when strategically appropriate and procedurally available.
• Review the proposed decree against the pleadings and admitted evidence before rendition.

Protecting a Separate-Property Claim

• Plead the separate-property characterization with sufficient specificity.
• Identify the constitutional or statutory basis for separate ownership.
• Gather acquisition documents showing when and how the property was obtained.
• Trace mutations and exchanges from the original separate asset to the asset existing at divorce.
• Address refinancing, title changes, commingling, and community expenditures.
• Retain a tracing expert when the financial history cannot be clearly established through ordinary records.
• Authenticate and admit the supporting records before judgment.
• Obtain a ruling on excluded evidence and make an offer of proof when necessary.
• Do not rely solely on title, a party’s conclusory testimony, or postjudgment submissions.
• Confirm that the admitted evidence satisfies the clear-and-convincing standard.

Evaluating a Restricted Appeal

• Verify that the notice of restricted appeal can be filed within six months after the judgment was signed.
• Confirm that the appellant was a party to the underlying proceeding.
• Determine whether the appellant participated in the hearing that resulted in judgment.
• Identify every postjudgment motion, request for findings, and other filing made by the appellant.
• Separate jurisdictional defects from the merits requirement of error apparent on the face of the record.
• Obtain the clerk’s and reporter’s records as they existed at rendition.
• Confirm the filing date of every document on which the proposed appellate issue depends.
• Exclude postjudgment evidence from the merits analysis.
• Evaluate legal and factual sufficiency based only on evidence admitted before judgment.
• Frame each issue around an affirmative error shown by the record rather than an evidentiary gap or silence.

Preserving and Challenging Notice

• Serve notice of the final setting by a method authorized by the applicable rules.
• Retain certificates, return receipts, electronic-service records, and clerk-generated notices.
• File proof of notice before the hearing when possible.
• Confirm whether an existing scheduling or reinstatement order already supplies notice.
• Create a clear record if opposing counsel questions the adequacy of notice at the hearing.
• Obtain an express ruling before proceeding when notice is disputed.
• For a restricted appeal, identify affirmative record evidence establishing lack of notice.
• Do not assume that silence in the record will rebut the presumption of proper notice.
• Distinguish lack of notice from inability or failure to appear.
• Address notice and participation issues separately when the litigant is incarcerated.

Representing an Incarcerated Family-Law Litigant

• Promptly notify the court and opposing counsel of the client’s location and custodial status.
• Confirm that the correctional facility has the correct case and hearing information.
• Request remote appearance, telephonic participation, deposition, or a bench warrant as appropriate.
• Explain why personal or remote participation is material to the issues being tried.
• Propose practical security and scheduling accommodations.
• Secure a ruling on each request for participation.
• Preserve excluded testimony through deposition, affidavit when authorized, or an offer of proof.
• Do not treat incarceration alone as proof that the client lacked notice.
• Ensure that property-characterization and tracing evidence is filed, offered, and admitted before rendition.

Citation

Romero v. Romero, No. 05-25-00968-CV (Tex. App.—Dallas Nov. 9, 2026, no pet. h.) (mem. op.).

Full Opinion

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