Opinion
No. 11-14-00061-CV
03-17-2016
FRANCES MARIE GUADALUPE, Appellant v. NELSON HECTOR GUADALUPE, Appellee
On Appeal from the 326th District Court Taylor County, Texas
Trial Court Cause No. 46,427C
MEMORANDUM OPINION
This is a restricted appeal from a divorce action that Appellee, Nelson Hector Guadalupe, filed against Appellant, Frances Marie Guadalupe. In two issues, Appellant asserts that the trial court erred in granting a no-answer default divorce because there is no evidence that the respondent was a resident of the State of Texas when the divorce was filed and because neither party was a resident of Taylor County or the State of Texas when the divorce was granted. We affirm.
Background Facts
Appellee filed the underlying suit for divorce in Taylor County on May 7, 2013. He alleged in his original petition for divorce that Appellee had been a domiciliary of Texas for the preceding six-month period and a resident of "this county" for the preceding ninety-day period. Appellee testified at the final hearing that Appellant was serving in the United States Air Force and that she was stationed at Dyess Air Force Base at the time suit was filed. She was served with citation at Dyess Air Force Base on May 8, 2013, and she received at that time a copy of the original petition for divorce, temporary restraining order, and the order setting hearing on temporary orders. Appellant did not file an answer to the divorce petition.
Appellee subsequently filed an amended petition for divorce on August 26, 2013. He alleged in the amended petition that, "[a]t the time of the filing of the Original Petition for Divorce, [Appellant] had been a domiciliary of Texas for the preceding six (6) month period and a resident of this county for the preceding ninety (90) day period." The amended petition further alleged that Appellant could be served with citation in Puerto Rico. She was subsequently served with the amended petition in Puerto Rico by certified mail. She also did not file an answer to the amended petition.
The trial court heard the prove-up of the default divorce on November 15, 2013. Appellee was the only witness that testified at the hearing. At the conclusion of the hearing, the trial court announced: "[Y]our evidence is sufficient." The trial court signed a final decree of divorce after the hearing.
Analysis
At the outset, Appellant contends that she meets the requirements for a pursuing a restricted appeal. A restricted appeal is a procedural device available to a party who did not participate, either in person or through counsel, in a proceeding that resulted in a judgment against the party. TEX. R. APP. P. 30. A restricted appeal is a direct attack on a default judgment. See id. A party filing a restricted appeal must demonstrate the following: (1) an appeal was initiated within six months after the judgment was rendered; (2) the appellant was a party to the suit; (3) the appellant did not participate in the hearing that resulted in the judgment complained of; (4) the appellant did not timely file 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) of the Texas Rules of Appellate Procedure; and (5) error appears on the face of the record. See id.; Alexander v. Lynda's Boutique, 134 S.W.3d 845, 848 (Tex. 2004). For purposes of a restricted appeal, the face of the record consists of all the papers on file in the appeal, including the reporter's record. See Osteen v. Osteen, 38 S.W.3d 809, 813 (Tex. App.—Houston [14th Dist.] 2001, no pet.) (citing Norman Commc'ns v. Tex. Eastman Co., 955 S.W.2d 269, 270 (Tex. 1997)). Before we can consider the fifth element, we must determine whether the first four elements have been met.
The trial court signed the final decree of divorce on November 15, 2013. Appellee filed her notice of restricted appeal on March 5, 2014. Thus, she filed her notice of restricted appeal within six months after the trial court signed the judgment. See TEX. R. APP. P. 26.1(c). Appellee was a party to the suit and did not participate in the trial. She did not file a postjudgment motion, a request for findings of fact or conclusions of law, or a notice of appeal from the divorce decree within thirty days. See TEX. R. APP. P. 30. Accordingly, we find that Appellant satisfied the first four requirements of a restricted appeal. However, as set out below, we conclude that error does not appear on the face of the record.
In her first issue, Appellant argues that there is no evidence that she was a resident of the State of Texas at the time the divorce was filed on May 7, 2013. She premises this contention on the allegation that Appellee's original petition for divorce did not state an address for her. She also alleges that the trial court entered temporary orders on June 3, 2013, that listed her address as "Fco. Augina #1899, Urb. Fair View, San Juan, PR 00926." She additionally alleges that there is no evidence that she intended to make Taylor County her permanent home while stationed in the military.
As a general rule, no evidence is required to support a default judgment because a defendant's failure to appear or answer is taken as admission of the factual allegations in a plaintiff's petition. Stoner v. Thompson, 578 S.W.2d 679, 682 (Tex. 1979). As noted above, both of Appellee's petitions alleged that Appellant had been a domiciliary of Texas for the preceding six-month period and a resident of Taylor County for the preceding ninety-day period. However, the general rule regarding the scope of the allegations in a petition deemed admitted by a failure to answer in a divorce proceeding is limited by Section 6.701 of the Family Code, which provides as follows: "In a suit for divorce, the petition may not be taken as confessed if the respondent does not file an answer." TEX. FAM. CODE ANN. § 6.701 (West 2006). In a divorce case, therefore, even if the respondent fails to file an answer, the petitioner must adduce proof to support the material allegations in the petition. Ratisseau v. Ratisseau, 44 S.W.3d 695, 697 (Tex. App.—Houston [14th Dist.] 2001, pet. dism'd by agr.). Therefore, a default judgment of divorce is subject to an evidentiary attack on appeal. Vazquez v. Vazquez, 292 S.W.3d 80, 84 (Tex. App.—Houston [14th Dist.] 2007, no pet.).
In reviewing a no-evidence issue on appeal, we consider only the evidence and inferences tending to support the trial court's finding and disregard all contrary evidence and inferences; anything more than a scintilla of evidence is legally sufficient to support the finding. See Wal-Mart Stores, Inc. v. Miller, 102 S.W.3d 706, 709 (Tex. 2003); Barry v. Barry, 193 S.W.3d 72, 75 (Tex. App.—Houston [1st Dist.] 2006 no pet.) (applying standard to a restricted appeal from a default divorce decree). Under the Family Code, "[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 has been: (1) a domiciliary of this state for the preceding six-month period; and (2) a resident of the county in which the suit is filed for the preceding 90-day period." TEX. FAM. CODE ANN. § 6.301 (West 2006). Although Section 6.301 is not itself jurisdictional, it is akin to a jurisdictional provision because it controls a party's right to maintain a suit for divorce and is a mandatory requirement that cannot be waived. In re Green, 385 S.W.3d 665, 669 (Tex. App.—San Antonio 2012, no pet.) (citing Reynolds v. Reynolds, 86 S.W.3d 272, 276 (Tex. App.—Austin 2002, no pet.)).
Appellant asserts that no evidence was produced at trial that established her residency in the State of Texas or Taylor County at the time that the divorce was filed. We disagree. At the prove-up hearing, Appellee's trial counsel asked him, "At the time of the filing of your First Amended Original Petition for Divorce had Mrs. Guadalupe been a resident of the State of Texas for six months?" Appellee replied, "Yes, she had." He was then asked, "And of Taylor County for 90 days?"; Appellee replied, "Yes." At first glance, these questions and answers appear to refer to Appellant's residency as of the date of the filing of the amended petition in August 2013. However, Appellee subsequently testified that Appellant was "stationed" at Dyess Air Force Base in Taylor County at the time she was served with citation of the original petition. When Appellee's pleadings and all of his testimony at the prove-up hearing are read together, we conclude that there is evidence in the record supporting the residency requirements of Section 6.301 as of the filing date of the original divorce petition. In this regard, the final decree of divorce contains a finding "that, at the time this suit was filed, [Appellant] had been a domiciliary of Texas for the preceding six (6) month period and a resident of the county in which the suit was filed for the preceding ninety (90) day period" (emphasis added).
The record does not indicate if Appellant's assignment at Dyess Air Force Base was permanent or temporary. --------
Appellant acknowledges in her brief that she was stationed at Dyess Air Force Base when she was served with citation for the original divorce petition. She contends that her status as a member of the armed forces stationed in Texas did not make her a domiciliary of this state because there was no evidence that she intended to make Taylor County her permanent home. We disagree with Appellant's contention. Section 6.304 of the Texas Family Code expressly provides:
A person not previously a resident of this state who is serving in the armed forces of the United States and has been stationed at one or more military installations in this state for at least the last six months and at a military installation in a county of this state for at least the last 90 days . . . is considered to be a Texas domiciliary and a resident of that county for those periods for the purpose of filing suit for dissolution of a marriage.FAM. § 6.304 (West Supp. 2015).
Appellee adduced evidence at the divorce hearing to prove Appellant's residence and domicile. Accordingly, there is no error on the face of the record because there is evidence that Appellant met the residence and domicile prerequisites required by Section 6.301 to bring a divorce action. We overrule Appellant's first issue.
In her second issue, Appellant asserts that the trial court erred when it granted the divorce because, "[o]n the day the divorce was granted, there was no proof that Appellee or the Appellant were residents of the State of Texas." Appellant cites no authority in support of her proposition that one of the spouses must be a resident of Texas at the time the divorce is granted. The residency requirements of Section 6.301 must be established as of the date the suit for divorce is filed. In re Rowe, 182 S.W.3d 424, 426 (Tex. App.—Eastland 2005, orig. proceeding). The fact that Appellant's residency changed soon after the divorce suit was filed is of no consequence. Id.
Appellant also asserts that, rather than looking to the date of filing of the original petition, we must look to the date of filing of the amended petition for purposes of establishing residency. She cites Bateman v. Bateman, 188 S.W.2d 866, 868 (Tex. Civ. App.—Waco 1945, writ dism'd), and Perusse v. Perusse, 402 S.W.2d 931, 933 (Tex. Civ. App.—El Paso 1966, writ dism'd), in support of this contention. Her reliance on these cases is misplaced. In a situation when the residency requirements are not met when the divorce suit is originally filed, the trial court typically abates the suit so that either the petitioner or the respondent can meet the residency requirements. See In re Milton, 420 S.W.3d 245, 252 (Tex. App.—Houston [1st Dist.] 2013, orig. proceeding). This situation arises when the original divorce petition fails to properly allege residency. See Reynolds, 86 S.W.3d at 277. When this situation occurs, the date of filing of the amended petition is the date that suit is filed for purposes of Section 6.301. See Hoffman v. Hoffman, 821 S.W.2d 3, 5-6 (Tex. App.—Fort Worth 1992, no writ) (holding that trial court should abate until petitioner meets residency requirements, at which point petitioner may file amended petition showing compliance with requirements). This situation is inapplicable to this case because Appellee's original petition sufficiently alleged residency under Section 6.301 and because the evidence offered at the prove-up hearing supported this allegation. Accordingly, there is no error on the face of the record concerning the parties' residency on the date the divorce was granted. We overrule Appellant's second issue.
This Court's Ruling
We affirm the judgment of the trial court.
JOHN M. BAILEY
JUSTICE March 17, 2016 Panel consists of: Wright, C.J.,
Willson, J., and Bailey, J.