Opinion
No. 07-15-00250-CV
05-10-2017
JOHN RANDALL BEAM, APPELLANT v. GLENDA HOSEK BEAM, APPELLEE
On Appeal from the County Court at Law Number Two Wise County, Texas
Trial Court No. CV-12-11-780; Honorable Stephen J. Wren, Presiding
MEMORANDUM OPINION
Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.
This is a restricted appeal of a default divorce decree. Appellee, Glenda Hosek Beam, filed for divorce and Appellant, John Randall Beam, although duly served, did not file an answer. John asserts that (1) this court has jurisdiction to hear his restricted appeal and (2) the trial court lacked sufficient evidence to support the property division in the final decree. That portion of the trial court's final decree granting the parties' divorce is affirmed, the remainder of the decree is reversed, and this case is remanded to the trial court for further proceedings consistent with this memorandum opinion.
Originally appealed to the Second Court of Appeals, this appeal was transferred to this court by the Texas Supreme Court pursuant to its docket equalization efforts. TEX. GOV'T CODE ANN. § 73.001 (West 2013). We are unaware of any conflict between precedent of the Second Court of Appeals and that of this court on any relevant issue. See TEX. R. APP. P. 41.3.
BACKGROUND
In November 2012, Glenda filed her Original Petition for Divorce. Under paragraph nine, "Division of Property," she stated that she believed she and John would enter into an agreement for the division of their estate. In September 2013, the trial court entered a notice that her case would be dismissed for want of prosecution unless good cause was shown why the case should not be dismissed. John was provided notice of the dismissal setting. In October, the trial court granted Glenda's Motion to Retain Case on Docket wherein she represented that she and John were attempting reconciliation.
In April 2014, the trial court again issued notice to both Glenda and John that her case would be dismissed for want of prosecution. In May, Glenda filed a second Motion to Retain Case on Docket wherein she again represented that she and John were attempting reconciliation. The trial court granted her motion once again.
In November 2014, the trial court issued a third notice that the case would be dismissed for want of prosecution and set the case on its dismissal docket for December 17, 2014. On December 11, Glenda and her counsel appeared in court. John did not appear and the record does not reflect whether he was notified of any scheduled hearing. The court called the case for hearing and Glenda was presented as the sole witness. The testimony presented, in its entirety, is as follows:
Q. Would you state your name, please.
A. Glenda Beam.
Q. Ms. Beam, you're currently married to John Randal [sic] Beam; is that correct?
A. Yes.
Q. And prior to the time -- immediately preceding the filing of this divorce petition you were a resident of Wise County for more than 90 days, correct?
A. Yes.
Q. And a resident of Texas for more than six months, correct?
A. Yes.
Q. And has your marriage to Mr. Beam become insupportable because of a conflict or discord in the marriage?
A. Yes.
Q. And is there any reasonable expectation of reconciliation at this time?
A. No.
Q. Are there any minor children of this marriage?
A. No.
Q. And none are expected at this time?
A. No.
Q. And none have been adopted of this marriage, correct?
A. No.
Q. Now, we have gone through here and prepared a final decree of divorce that allocates your marital estate, a portion to Mr. Beam and a portion to you; is that correct?
A. Yes.
Q. And have you had an opportunity to go over this document and satisfy yourself that I have drafted it the way you want it to be?
A. Yes.
Q. Okay. And have you had an opportunity to ask me all the questions you needed to ask me?
A. Yes.
Q. Do you believe that the division of marital property as set forth in the proposed decree is a just and right division of your marital estate?
A. Yes.
Q. And you're asking the Court to grant your divorce?
A. Yes.
At the hearing's conclusion, the trial court signed a Final Decree of Divorce presented by Glenda's counsel. In the decree, the trial court dissolved the marriage and divided the marital estate by awarding to John, "as his sole and separate property," certain bank accounts, retirement benefits, insurance policies, vehicles, a boat, trailers, firearms, and knives. The decree further awarded to Glenda, "as her sole and separate property," two tracts of real property described by metes and bounds, one tract of real property described by a street address and a lot and block description, certain oil and gas interests, bank accounts, retirement benefits, insurance policies, vehicles, a trailer, tools and equipment, a forklift, cemetery lot, and a business known as Derrett Creek, Incorporated. None of the assets had any value assigned to them. The decree also ordered that certain debts be paid by John and other debts be paid by Glenda. This appeal followed.
ISSUES ONE AND TWO
In his first issue, John asserts this court has jurisdiction to hear this restricted appeal because the appeal is timely, he was a party to Glenda's suit, and he did not participate in the actual trial or file any post-trial motions. In his second issue, he asserts error is apparent on the face of the record because there was no evidence at the hearing to support the trial court's finding that the decree represented a just and right division of the couple's property. We agree. For convenience, we will discuss both issues under a single heading.
A restricted appeal is a procedural device available to a party that did not participate either in person or through counsel, in a proceeding that resulted in a judgment against the party. See TEX. R. APP. P. 30. See also Ulusal v. Lentz Eng'g, L.C., 491 S.W.3d 910, 914 (Tex. App.—Houston [1st Dist.] 2016, no pet.). It constitutes a direct attack on a default judgment. Arnell v. Arnell, 281 S.W.3d 549, 551 (Tex. App.—El Paso 2008, no pet.). To prevail in a restricted appeal, an appellant must show that (1) a notice of appeal was filed within six months of the date the complained-of judgment or order was signed; (2) appellant was a party to the suit who did not participate in the hearing that resulted in the judgment or order; (3) appellant did not timely file a post-judgment motion, request findings of fact and conclusions of law, or file a notice of appeal within the time permitted under Rule 26.1(a) of the Texas Rules of Appellate Procedure; and (4) the complained-of error is apparent from the face of the record. See TEX. R. APP. P. 30. See Watson v. Watson, 286 S.W.3d 519, 522 (Tex. App.—Fort Worth 2009, no pet.) (citing Alexander v. Lynda's Boutique, 134 S.W.3d 845, 848 (Tex. 2004)). The face of the record, for the purpose of a restricted appeal, consists of all papers on file in the appeal, including the reporter's record. Id. (citing Norman Comms., Inc. v. Tex. Eastman Co., 955 S.W.2d 269, 270 (Tex. 1997)). Here, Glenda candidly admits in her brief that John has satisfied the first three elements necessary to bring a restricted appeal. Thus, only the fourth element—error apparent on the face of the record—is at issue here.
Technically, there can be no default judgment in a divorce action. Roa v. Roa, 970 S.W.2d 163, 165 n.2 (Tex. App.—Fort Worth 1998, no pet.). Even when a respondent fails to file an answer to a petition seeking divorce, the petitioner is required to prove the allegations at the final hearing on the case because a petitioner's allegations are not taken as confessed by a respondent's failure to answer. Id. See TEX. FAM. CODE ANN. § 6.701 (West 2006) ("In a suit for divorce, the petition may not be taken as confessed if the respondent does not file an answer."). Therefore, a default judgment of divorce is subject to an evidentiary attack on appeal. Agraz v. Carnley, 143 S.W.3d 547, 552 (Tex. App.—Dallas 2004, no pet.).
A trial judge is charged with dividing the community estate in a "just and right" manner, considering the rights of both parties. TEX. FAM. CODE ANN. § 7.001 (West 2006); Watson, 286 S.W.3d at 522. The court has broad discretion in making its just and right division, and absent an abuse of discretion, we will not disturb that division. Watson, 286 S.W.3d at 522 (citing Murff v. Murff, 615 S.W.2d 696, 698-99 (Tex. 1981)). A trial court abuses its discretion when it acts in an arbitrary or unreasonable manner or when it acts without reference to any guiding principles; Worford v. Stamper, 801 S.W.2d 108, 109 (Tex. 1990) (per curiam), and does not generally abuse its discretion as long as some evidence of substantive and probative character exists to support the trial court's decision. Agraz, 143 S.W.3d at 554.
In family law cases, the traditional sufficiency standard of review overlaps with the abuse of discretion standard of review; therefore, we engage in a two-pronged inquiry. That is, we ask (1) whether the trial court had sufficient evidence upon which to exercise its discretion and (2) whether it erred in the exercise of that discretion. In re A.B.P., 291 S.W.3d 91, 95 (Tex. App.—Dallas 2009, no pet.); Agraz, 143 S.W.3d at 554. When there is no evidence or insufficient evidence to support the property division, we must reverse that portion of the decree and remand for a new trial. Sandone v. Miller-Sandone, 116 S.W.3d 204, 208 (Tex. App.—El Paso 2003, no pet.).
Further, the standard of review of a sufficiency issue is heightened when the burden of proof at trial is clear and convincing evidence. In re J.F.C., 96 S.W.3d 256, 266-67 (Tex. 2002). A party who seeks to assert the separate character of property must prove the character by clear and convincing evidence. TEX. FAM. CODE ANN. § 3.003(b) (West 2006). Clear and convincing evidence is that measure or degree of proof that will produce in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established. TEX. CIV. PRAC. & REM. CODE ANN. § 41.001(2) (West 2014); TEX. FAM. CODE ANN. § 101.007 (West 2014). In a legal sufficiency review of a finding that property is separate in character, we review all the evidence in the light most favorable to the finding to determine whether a reasonable trier of fact could have formed a firm belief or conviction that the finding was true. Watson, 286 S.W.3d at 523; In re J.F.C., 96 S.W.2d at 266.
This case is similar to O'Neal v. O'Neal, 69 S.W.3d 347 (Tex. App.—Eastland 2002, no pet.). There, as here, only the appellee presented testimony at trial, and his testimony comprised just four pages. Id. at 349. As he testified, the appellee referred to a proposed decree he had submitted to the trial court and testified that the division of the parties' assets and debts as set out in the proposed decree was "fair and equitable." Id. at 350. The court of appeals held that the trial court abused its discretion by dividing the marital estate because there was no evidence in the record of the value of any of the property divided by the trial court. Id. The court of appeals affirmed the divorce but reversed the property division and remanded the case for a new trial. Id.
The similar lack of evidence in our case compels a similar result. There is no evidence of the extent or value of the marital estate or debts. There is no evidence of the nature of the marital property whether community or separate. Therefore, because Glenda presented no evidence concerning the parties' marital assets and debts or its community or separate property character, the trial court lacked sufficient evidence upon which to exercise its discretion with regard to these matters. Watson, 286 S.W.3d at 525. See Wilson v. Wilson, 132 S.W.3d 533, 535-36 (Tex. App.—Houston [1st Dist.] 2004, pet. denied); O'Neal, 69 S.W.3d at 349-50.
John also asserted the trial court lacked jurisdiction to issue the decree because there was no evidence adduced at the hearing that he was a domiciliary of Texas for the preceding ninety days or a resident of Wise County for the preceding ninety days. See TEX. FAM. CODE ANN. § 6.301 (West 2006). At the hearing, Glenda testified she was a domiciliary of Texas and a resident of Wise County for the preceding ninety days. Her testimony was sufficient evidence to satisfy the general residency rule. Id. ("A suit for divorce may not be maintained in this state unless at the time the suit is filed either the petitioner or the respondent [satisfies the residence rule].").
Because Glenda presented no evidence concerning the character or value of the parties' marital assets and debts, the trial court lacked sufficient evidence upon which to exercise its discretion regarding these matters. Watson, 286 S.W.3d at 525. This error was apparent on the face of the record. Id. Accordingly, John's first and second issues are sustained.
CONCLUSION
That portion of the trial court's decree granting the parties' divorce is affirmed, the remainder of the final decree is reversed, and this case is remanded to the trial court for further proceedings consistent with this memorandum opinion.
Patrick A. Pirtle
Justice