B.K. v. T.K. ( 2021 )

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-19-00472-CV
___________________________
B.K., Appellant
V.
T.K., Appellee
On Appeal from the 442nd District Court
Denton County, Texas
Trial Court No. 19-6678-442
Before Sudderth, C.J.; Kerr and Birdwell, JJ.
Memorandum Opinion by Chief Justice Sudderth
MEMORANDUM OPINION
Wife B.K. filed this restricted appeal from the trial court’s no-answer default
judgment against her in the underlying divorce proceeding. Although the record
shows that Wife was properly served and received presumptive notice of the
judgment’s entry, we nevertheless reverse and remand because Husband T.K. did not
present sufficient evidence to support the trial court’s property division or the orders
concerning the parties’ child.
Restricted Appeal Requirements
To prevail in this restricted appeal, Wife must show that (1) she timely filed a
notice of restricted appeal, (2) she was a party to the underlying suit, (3) she did not
participate in the hearing that resulted in the complained-of judgment and did not
timely file either a postjudgment motion, request for findings of fact and conclusions
of law, or a notice of appeal within the time permitted by Rule 26.1(a), and (4) error is
apparent from the face of the record. See Tex. R. App. P. 26.1(c), 30; Alexander v.
Lynda’s Boutique, 134 S.W.3d 845, 848 (Tex. 2004); In re S.W., 614 S.W.3d 311, 313–14
(Tex. App.—Fort Worth 2020, no pet.) (mem. op.). The first three elements are
necessary to invoke our restricted-appeal jurisdiction, but the fourth is not. Ex parte
E.H., 602 S.W.3d 486, 496 (Tex. 2020).
Preservation
Husband does not challenge that Wife met the three jurisdictional requirements
to maintain a restricted appeal. Instead, he contends that because the record shows
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that the trial court properly notified Wife of the judgment, and therefore that Wife is
presumed to have received timely notice of the judgment, Wife failed to preserve the
right to complain about the default judgment via restricted appeal by failing to file a
timely motion for new trial. See Tex. R. Civ. P. 324(b)(1).
Husband conflates the prerequisites for filing a restricted appeal with the
prerequisites for filing regular appeals. The two are not the same. See, e.g., Fid. &
Guar. Ins. v. Drewery Constr. Co., 186 S.W.3d 571, 574 (Tex. 2006) (per curiam). For
regular appeals, civil-procedure Rule 324(b)(1) provides that the filing of a motion for
new trial “is a prerequisite to” a complaint on appeal “on which evidence must be
heard[,] such as one of . . . failure to set aside a judgment by default.” Id. Husband
appears to argue that Rule 324 provides that evidence must be heard in any appeal
from a default judgment, including a restricted appeal. But appellate-procedure Rule
30 requires the absence of a timely-filed “postjudgment motion” by the nonappearing
party to invoke this court’s jurisdiction over a restricted appeal. Tex. R. App. P. 30.
A motion for new trial is a postjudgment motion. Camacho v. Vasquez, No. 08-13-
00019-CV, 2013 WL 5593116, at *1 (Tex. App.––El Paso Oct. 9, 2013, no pet.)
(mem. op.). Thus, Husband’s argument “is contrary to the plain language of Rule 30.”
Haddix v. Am. Home Assurance, No. 12-05-00205-CV, 2005 WL 1643288, at *1 (Tex.
App.––Tyler July 13, 2005, pet. denied) (per curiam) (mem. op); Petco Animal Supplies,
Inc. v. Schuster, 144 S.W.3d 554, 559 n.4 (Tex. App.––Austin 2004, no pet.).
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Wife’s sufficiency arguments can be determined from the face of the record,
Petco, 144 S.W.3d at 559 n.4; thus, her arguments are not the type on which “evidence
must be heard,” Tex. R. Civ. P. 324(b)(1). To hold that Rule 324 requires a defaulting
party to file a timely motion for new trial as a prerequisite to a restricted appeal
“would preclude all restricted appeals.” Petco, 144 S.W.3d at 559 n.4. We therefore
decline to hold that Wife failed to preserve her right to bring a restricted appeal of the
no-answer default judgment.
Error on the Face of the Record
In a single issue, Wife contends that the face of the record shows that the trial
court reversibly erred, first by signing a purported agreed judgment when no evidence
shows that the parties agreed to the judgment’s terms1 and, second, by rendering a
property division and making conservatorship, possession, and child-support rulings
based on legally insufficient or factually insufficient evidence. We address her second
argument first.
Standard of Review
We review a trial court’s property-division, conservatorship, possession, and
child-support rulings for an abuse of discretion. See Worford v. Stamper, 801 S.W.2d
108, 109 (Tex. 1990) (per curiam) (child support); Beg v. Shakeel, No. 01-19-00765-CV,
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Husband acknowledges that “other than the name of the document, nothing
else shows that it is an agreed final decree” and that he “does not take the position on
appeal that this was an agreed judgment.” He characterizes the judgment’s title as a
“misnomer.”
4
2020 WL 7502491, at *9 (Tex. App.––Houston [1st Dist.] Dec. 22, 2020, no pet.)
(mem. op.) (exclusive right to designate primary residence); Hamilton v. Hamilton, No.
02-19-00211-CV, 2020 WL 6498528, at *6 (Tex. App.––Fort Worth Nov. 5, 2020, no
pet.) (mem. op.) (property division); K.T. v. M.T., No. 02-14-00044-CV, 2015 WL
4910097, at *3 (Tex. App.—Fort Worth Aug. 13, 2015, no pet.) (mem. op.)
(possession). A trial court abuses its discretion if it acts arbitrarily or unreasonably or
does not analyze or apply the law properly. Iliff v. Iliff, 339 S.W.3d 74, 78 (Tex. 2011).
Whether the evidence supporting such rulings is legally and factually sufficient is
relevant in deciding whether the trial court abused its discretion. In re T.D.C., 91
S.W.3d 865, 872 (Tex. App.—Fort Worth 2002, pet. denied) (op. on reh’g). To
determine whether the trial court abused its discretion because the evidence is
insufficient to support its decision, we consider whether the trial court (1) had
sufficient evidence upon which to exercise its discretion and (2) erred in its exercise of
that discretion. Heap-Welch v. Welch, No. 05-19-01260-CV, 2020 WL 6304992, at *2
(Tex. App.—Dallas Oct. 28, 2020, no pet.) (mem. op.).
In a restricted appeal, we may only consider evidence that was included in the
appellate record and that was before the trial court at the time of the dismissal. Gen.
Elec. Co. v. Falcon Ridge Apartments, 811 S.W.2d 942, 944 (Tex. 1991); McCoy v. McCoy,
No. 02-17-00275-CV, 2018 WL 5993547, at *2 (Tex. App.––Fort Worth Nov. 15,
2018, no pet.) (mem. op.).
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Property Division
In a divorce suit, “the petition may not be taken as confessed if the respondent
does not file an answer.” Tex. Fam. Code Ann. § 6.701. Thus, if the respondent in a
divorce case fails to answer or appear, the petitioner must present evidence to support
the material allegations in the petition. Heap-Welch, 2020 WL 6304992, at *2; Watson v.
Watson, 286 S.W.3d 519, 523 (Tex. App.—Fort Worth 2009, no pet.) (“Technically,
there can be no default judgment in a divorce action.”). Accordingly, a default
divorce judgment is subject to evidentiary attack on appeal. Heap-Welch, 2020 WL
6304992, at *2.
Evidence is legally insufficient to support a decree’s property division when no
evidence of the divided property’s value is adduced. E.g., id.; Watson, 286 S.W.3d at524–25; Wilson v. Wilson, 132 S.W.3d 533, 537–38 (Tex. App.––Houston [1st Dist.]
2004, pet. denied); O’Neal v. O’Neal, 69 S.W.3d 347, 348–50 (Tex. App.––Eastland
2002, no pet.).
Husband’s testimony spans four pages. He testified that the proposed decree
disposed of all the parties’ assets and liabilities and that he believed it effected a fair
and just division of the marital estate. The decree does not ascribe any value to the
property divided, either individually or as a whole, and no other document filed in the
record indicates the value of any part of the marital estate. Accordingly, we hold that
there is no evidence in the record to support the trial court’s property division and
that without sufficient evidence to make such a decision, the trial court abused its
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discretion in its property-division ruling. See Heap-Welch, 2020 WL 6304992, at *2;
Watson, 286 S.W.3d at 524–25; Wilson, 132 S.W.3d at 537–38; O’Neal, 69 S.W.3d at348–50.
Parenting Provisions
The record consists of two pages of Husband’s testimony regarding the
decree’s child-related provisions: he gave the child’s name and age; stated that she
was living with him at the time; asked for $100 per month in child support––which
according to his attorney was “significantly less than the statutory guideline amount of
[Wife’s] income, which would be roughly $600 per month,” and which he agreed was
in the child’s best interest; requested to be named the “primary joint managing
conservator”; and stated that standard visitation was in the child’s best interest. The
decree recites that Wife’s monthly net resources were $3,8002 and that Husband’s
were $4,500. It also acknowledges––without supporting findings––that the monthly
child support amount deviates from the percentage guidelines. See Tex. Fam. Code
Ann. § 154.122 (setting forth a rebuttable presumption that ordering child support
according to the guidelines is in a child’s best interest), § 154.123 (allowing trial court
to deviate from guidelines and mandating that trial court consider evidence of “all
relevant factors, including” seventeen listed items, such as the parents’ ability to
contribute to the child’s support, “any financial resources available for the support of
2
The decree states elsewhere that Wife was unemployed.
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the child,” whether a party has managing conservatorship or physical custody of
another child, and the cost of travel for a party to exercise possession and access),
§ 154.124 (allowing parties to vary from guidelines by written agreement if the court
determines that the agreement is in the child’s best interest).
As with the property division, the parts of the decree related to conservatorship
and possession of the child, and to the parties’ relationship with the child and each
other, are supported only by Husband’s wholly conclusory testimony. The trial court
heard no evidence from which it could determine the child’s best interest. See Holley v.
Adams, 544 S.W.2d 367, 371–72 (Tex. 1976) (setting forth nonexclusive factors trial
court may consider in determining child’s best interest); In re T.M., No. 02-19-00329-
CV, 2020 WL 523272, at *5 (Tex. App.––Fort Worth Feb. 3, 2020, no pet.) (mem.
op.) (applying Holley factors to conservatorship determination). Thus, the trial court
could not have properly exercised its discretion in making the child-related rulings in
the decree.3 See Smith v. Hickman, No. 04-19-00182-CV, 2020 WL 1442663, at *2
(Tex. App.–-San Antonio Mar. 25, 2020, no pet.) (mem. op.); Garcia v. Benavides, No.
04-19-00451-CV, 2020 WL 214758, at *2 (Tex. App.––San Antonio Jan. 15, 2020, no
3
Although the decree recites that its provisions “relating to the rights and duties
of the parties with relation to the child, possession of and access to the child, child
support, and optimizing the development of a close and continuing relationship
between each party and the child constitute the parties’ agreed parenting plan,”
Husband did not testify that Wife agreed to the parenting plan; even if he had,
Husband did not provide sufficient evidence for the trial court to make a best-interest
determination. See Tex. Fam. Code Ann. § 153.007(b) (allowing court to render an
order in accordance with an agreed parenting plan “[i]f the court finds that the agreed
parenting plan is in the child’s best interest”).
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pet.) (mem. op.); Vasquez v. Vasquez, 292 S.W.3d 80, 84–85 (Tex. App.––Houston
[14th Dist.] 2007, no pet.); Miles v. Peacock, 229 S.W.3d 384, 391 (Tex. App.––Houston
[1st Dist.] 2007, no pet.). We hold that these parts of the decree comprising the
“agreed parenting plan” show error on the face of the record.
Additionally, although our determination that the trial court erred in its
property division requires us to remand the trial court’s child-support award as well as
its property division, see, e.g., Wilson, 132 S.W.3d at 539, we also note that evidentiary
error exists on the face of the record as to the child support. The decree recites that
Wife’s net monthly resources were $3,800, but Husband provided no evidence to
support that amount––nothing concerning her employment, wages, salary, or other
income.4 See Gonzalez v. Gonzalez, 331 S.W.3d 864, 867–68 (Tex. App.––Dallas 2011,
no pet.); Miles, 229 S.W.3d at 390; Newberry v. Bohn-Newberry, 146 S.W.3d 233, 236
(Tex. App.––Houston [14th Dist.] 2004, no pet.) (substituted op.) (“There must be
some evidence of a substantive and probative character of net resources in order for
this duty [to calculate net resources for child-support calculation] to be discharged.”).
He likewise adduced no evidence that would support the findings necessary for the
trial court to deviate from the child-support guidelines. See Tex. Fam. Code
4
See id. § 154.068(a) (providing presumption, if no evidence is adduced
regarding party’s net resources, that party earns then-current federal minimum wage at
forty hours per week). The Attorney General’s 2019 tax chart indicates that the
monthly average income at federal minimum wage would be $1,256.67. Office of the
Attorney Gen., https://csapps.oag.texas.gov/system/files/2018-
12/2019taxcharts.pdf (last visited May 24, 2021).
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Ann. § 154.123; Steele v. Steele, No. 03-07-00011-CV, 2009 WL 2567911, at *4 (Tex.
App.––Austin Aug. 19, 2009, no pet.) (mem. op.). Accordingly, the trial court abused
its discretion in awarding child support.
Having determined that Wife has shown error in the trial court’s judgment on
the face of the record,5 we sustain her issue.
Conclusion
At Wife’s request, we affirm the part of the trial court’s judgment that grants
the divorce, but having sustained Wife’s issue, we reverse the remainder of the
judgment and remand the case for a new trial.
/s/ Bonnie Sudderth
Bonnie Sudderth
Chief Justice
Delivered: May 27, 2021
5
Because of our disposition, we need not address Wife’s argument that
additional error exists on the face of the record because nothing shows that she
actually agreed to the judgment. See Tex. R. App. P. 47.1.
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