Opinion
No. 09-09-00485-CV
Submitted on September 17, 2010.
Opinion Delivered October 28, 2010.
On Appeal from the 221st District Court, Montgomery County, Texas, Trial Cause No. 08-01-00856-CV.
Before McKEITHEN, C.J., GAULTNEY and KREGER, JJ.
MEMORANDUM OPINION
In this restricted appeal of a post-answer default judgment, Janice Adeen Hendley contends the evidence is legally and factually insufficient to support the trial court's divorce decree findings regarding fault, property division, support, and visitation. The appellee, John Lewis Lywiski, has not filed a brief on appeal. We affirm the judgment in part, reverse the judgment in part, and remand the case to the trial court for further proceedings.
Lywiski filed a petition for divorce and Hendley filed a counterpetition. On November 20, 2008, the trial court granted the motion to withdraw filed by counsel for Hendley. At the time, the case was set for trial on January 20, 2009, with a docket call scheduled for January 8, 2009, at 10:00 a.m. When Hendley failed to appear for the docket call, the trial court conducted a brief hearing and granted Lywiski's petition for divorce by default. Lywiski failed to submit a written decree, and the trial court set the case for entry of judgment on March 19, 2009. The trial court dismissed the case on March 23, 2009, and reinstated the case on Lywiski's motion on April 21, 2009. On April 27, 2009, the trial court signed a divorce decree that recited the case had been heard on January 8, 2009. Hendley filed a notice of restricted appeal on October 26, 2009.
Issue one addresses Hendley's entitlement to seek relief through a restricted appeal. A restricted appeal is available to "[a] party who did not participate — either in person or through counsel — in the hearing that resulted in the judgment complained of and who did not timely file a postjudgment motion or request for findings of fact and conclusions of law, or a notice of appeal within the time permitted by Rule 26.1(a)[.]" Tex. R. App. P. 30; see also Tex. R. App. P. 26.1(c).
As the respondent in Lywiski's suit for divorce and custody, Hendley was a party. Because Hendley did not appear at the docket call, she was not present when evidence concerning the terms of the decree was introduced. See Cox v. Cox, 298 S.W.3d 726, 731 (Tex. App.-Austin 2009, no pet.). Hendley's only post-judgment filing was the notice of restricted appeal. The default decree of divorce was signed on the twenty-seventh day of April, and notice of appeal was filed the twenty-sixth day of the sixth month following the month of April. See Tex. Gov't Code Ann. § 311.014(c) (West 2005). Therefore, notice of appeal was filed too late to perfect a regular appeal but within the time for perfecting a restricted appeal. See Tex. R. App. P. 26.1(a), (c). Hendley may challenge the judgment by restricted appeal. See Tex. R. App. P. 30.
To prevail on a restricted appeal, an appellant must establish that error is apparent from the face of the record. Alexander v. Lynda's Boutique, 134 S.W.3d 845, 848 (Tex. 2004). Hendley identifies twelve provisions in the decree of divorce that she contends are not supported by legally and factually sufficient evidence from the prove-up hearing. When legally insufficient evidence supports a default judgment, the proper remedy is remand, not rendition. See Dolgencorp of Tex., Inc. v. Lerma, 288 S.W.3d 922, 930 (Tex. 2009). This rule applies to claims of error on the face of the record in a restricted appeal. Bennett v. McDaniel, 295 S.W.3d 644, 645 (Tex. 2009).
In reviewing the evidence for legal sufficiency, we view the evidence in the light most favorable to the fact finding, credit favorable evidence if a reasonable trier of fact could do so, and disregard contrary evidence unless a reasonable trier of fact could not. City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005). Because the trier of fact acts as the sole judge of credibility, we cannot disturb the fact finder's resolution of evidentiary conflicts that turn upon credibility and the weight to be given to evidence. Id. at 819-20. Anything more than a scintilla of evidence offered to prove a vital fact will be legally sufficient to support the trial court's finding. Id. at 810. In reviewing the evidence for factual sufficiency, we must weigh all the evidence, both for and against the finding. Dow Chem. Co. v. Francis, 46 S.W.3d 237, 242 (Tex. 2001). In a factual sufficiency challenge we may set aside a finding of fact only if the evidence is so weak or if the finding is so against the great weight and preponderance of the evidence that it is clearly wrong and unjust. Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex. 1986). In a divorce case in which the trial court exercises its discretion, we must first determine whether the trial court had sufficient evidence upon which to exercise its discretion, then we must determine whether the trial court erred in applying that discretion. Bigelow v. Stephens, 286 S.W.3d 619, 620-21 (Tex. App.-Beaumont 2009, no pet.).
The decree grants the divorce on the grounds of adultery and emotional cruelty. In the hearing, Lywiski testified that he and Hendley married in 2006. According to Lywiski, Hendley is currently living with another man and two months before the hearing, Hendley gave birth to a child. Lywiski stated that he and Hendley had not had intimate contact, and consequently Lywiski could not be the father of Hendley's newborn. Although Hendley argues there is no evidence to support the finding of cruel treatment, she does not challenge the finding of adultery and the evidence supports such a finding. Evidence of adultery will support a finding of cruel treatment. Winkle v. Winkle, 951 S.W.2d 80, 90-91 (Tex. App.-Corpus Christi 1997, writ denied). With regard to the trial court having found grounds for divorce, error does not appear on the face of the record.
The decree of divorce found that the child was not born of the marriage, and appellant does not contest this finding.
The decree orders Hendley to pay child support in the amount of $1,000 per month for the support of the four children born of the marriage. Hendley argues that the child support provisions contained in the decree demonstrate error on the face of the record because no evidence from the hearing suggests whether Hendley is employed or what her income might be. No evidence was offered at the hearing regarding Hendley's employment status or her income. The trial court must calculate the obligor's net resources for the purpose of determining child support liability. Tex. Fam. Code Ann. § 154.062(a) (West Supp. 2010). Absent evidence of wage and salary income, the trial court must presume that the party has wages and salary equal to the federal minimum wage for a forty-hour week. Id. § 154.068 (West 2008). Furthermore, the presumptive percentage based upon the obligor's wages and salary must be adjusted to account for the child of Hendley who was not before the trial court. See id. §§ 154.125, 154.128, 154.129 (West 2008 Supp. 2010). Assuming the federal minimum wage produced net monthly income of $1,012.86, 32.2% of those resources are substantially less than the amount of child support ordered by the court. Accordingly, there is no evidence to support a child support obligation in the amount of $1,000 per month as ordered in the decree. The trial court erred in setting child support without evidence of Hendley's net resources. See Miles v. Peacock, 229 S.W.3d 384, 390 (Tex. App.-Houston [1st] 2007, no pet.). With regard to the order for child support, error is shown on the face of the record.
In the decree, the trial court found that Hendley owes Lywiski $2,100 in past due child support and orders Hendley to make monthly payments on the arrearage. A mediated settlement agreement for temporary orders provided that Hendley would pay child support in the amount of $350 per month. At the prove-up hearing, Lywiski testified that Hendley agreed to pay child support and is $2,100 in arrears. Hendley argues this testimony is too conclusory to support an arrearage order. Hendley agreed to pay child support in the amount of $350 per month in a mediated settlement agreement, but the record does not contain the temporary orders authorized by the mediated settlement agreement. See Tex. Fam. Code Ann. § 105.001 (West 2008). Moreover, Lywiski's pleadings neither allege an arrearage nor request that the trial court grant Lywiski a judgment for past-due child support. A party taking a default judgment cannot be granted greater relief than that asked for in his pleadings. See Giron v. Gonzalez, 247 S.W.3d 302, 309 (Tex. App.-El Paso 2007, no pet.). "An absent party is not held to trial by implied consent of an unpled cause of action where fair notice of the cause of action is not in the pleadings." In re B.N.A., 278 S.W.3d 530, 534 (Tex. App.-Dallas 2009, no pet.). As to the award of arrearages for unpaid temporary child support, error appears in the record.
Hendley contends the trial court abused its discretion by ordering Hendley to pay for and maintain, as additional child support, a life insurance policy with Lywiski as beneficiary for the children. The Family Code authorizes the trial court to order a child support obligor to obtain and maintain life insurance. See Tex. Fam. Code Ann. § 154.016 (West 2008). The factors the trial court considers in determining the nature and extent of the child support obligation include the present value of the total amount of monthly periodic child support payments and health insurance premiums ordered in the decree. Id. Lywiski testified that he pays $423 per month for health insurance on the children, and he requested that Hendley be ordered to pay $1,000 per month in child support, but he offered no evidence relating to the present value of those payments and premiums. Furthermore, the amount ordered for child support is not supported by the record, which contains no evidence about Hendley's income. See Miles, 229 S.W.3d at 390. As is the case with the other child support orders in the default decree, error appears on the face of the record.
Hendley contends the trial court abused its discretion by ordering Hendley to pay to Lywiski the sum of $423 each month as additional child support for the children's medical insurance premiums. Lywiski testified that he pays "about $423 a month" for the insurance he carried on the children. If the party ordered to provide medical insurance coverage is the child support obligee, the trial court shall order the child support obligor to pay the actual cost of health insurance "not to exceed a reasonable cost to the obligor." Tex. Fam. Code Ann. § 154.182(b-1) (West Supp. 2010). "Reasonable cost" means "the total cost of health insurance coverage for all children for which the obligor is responsible under a medical support order that does not exceed nine percent of the obligor's annual resources[.]" Id. §§ 154.181(e), 154.182(c)(2). With regard to the medical support order, error is shown on the record because the record contains no evidence of Hendley's net resources. See Miles, 229 S.W.3d at 390.
Hendley argues error appears on the face of the record regarding possession and access to the children. In appointing a possessory conservator, the trial court must expressly state the times and conditions for possession unless good cause is shown why specific orders would not be in the best interest of the children. Tex. Fam. Code Ann. § 153.006 (West 2008). A possession order that leaves the times and days of possession to the discretion of the managing conservator effectively denies visitation. Roosth v. Roosth, 889 S.W.2d 445, 452 (Tex. App.-Houston [14th] 1994, writ denied).
The trial court found that Hendley "has a history or pattern of substance abuse and is currently living with a convicted felon." The trial court granted Hendley visitation only "under the supervision of [Lywiski or his appointee] on days and times agreed to by [Lywiski.]" According to Lywiski, the "last known address" that his private investigator found for Hendley was the address of a particular person who had records for "numerous convictions for cocaine, drug problems, delivery, burglary" and Hendley "has herself some drug problems[.]" Lywiski testified that Hendley had made no attempt to see the children for five months. The nature and extent of Hendley's "drug problems" is not shown in the record, nor did Lywiski offer any evidence to show why the children could not be adequately protected by an order that restricted Hendley's roommate's access to the children, as opposed to Hendley's access to the children. Although there is some evidence in the record to support an order that limits or restricts Hendley's possession of the children in some way, there is insufficient evidence in the record to deny her access altogether. Thus, with respect to visitation orders, error appears on the face of the record.
Hendley contends the trial court abused its discretion in the property division. During the prove-up hearing, Lywiski asked to be awarded the marital residence, his 2004 F-250 truck, and the sum of $4,000 as one-half of the Blue Book trade-in value on an Expedition. Lywiski offered no other evidence of the parties' assets and liabilities. The default decree awarded Hendley only the personal effects in her possession. Lywiski stated on the record that he believed the property division to be fair and equitable, but he explained neither the property division nor the basis for Lywiski's opinion. Lywiski's bare, unsupported opinion regarding the property division provided insufficient evidence to support the default decree. See Vazquez v. Vazquez, 292 S.W.3d 80, 85 (Tex. App.-Houston [14th] 2007, no pet.). With regard to the division of the marital estate, there is error on the face of the record.
Hendley also contends that Lywiski failed to present any evidence to support the trial court's order that the parties mediate any future controversy regarding conservatorship, possession or access as a prerequisite to the filing of any suit for modification. In rendering an order appointing joint managing conservators, the trial court shall "if feasible, recommend that the parties use an alternative dispute resolution method before requesting enforcement or modification of the terms and conditions of the joint conservatorship through litigation, except in an emergency." Tex. Fam. Code Ann. § 153.134(b)(5) (West 2008). In Dennis v. Smith, the First Court of Appeals construed section 153.135(b)(5) to authorize only a recommendation and held the trial court erred in entering an order for joint managing conservators to mediate as a prerequisite to filing suit. Dennis v. Smith, 962 S.W.2d 67, 74 (Tex. App.-Houston [1st] 1997, pet. denied). In this case, the trial court named Lywiski the children's sole managing conservator. Lywiski offered no evidence to justify the particular order entered in this case. On this record, the mediation order is erroneous.
Hendley contends the trial court abused its discretion by ordering Hendley to pay Lywiski's attorney's fees in the amount of $7,500. Although a trial court is generally authorized to apportion attorney's fees in divorce and conservatorship cases, "[t]he reasonableness of the fee is a question of fact that must be supported by evidence." Vazquez, 292 S.W.3d at 86. In this case, neither Lywiski nor his attorney testified about the fees incurred and their reasonableness and necessity. Without such testimony, the trial court abused its discretion in awarding attorney's fees in the default divorce decree. See id.
The trial court further enjoined Hendley from allowing the children to be in the presence of Hendley's roommate. On appeal, Hendley complains that no pleadings support the injunction. Although Lywiski's petition asked the trial court to restrict Hendley's access to the children, the petition did not ask that Hendley be permanently restrained from allowing the children to be in the presence of Hendley's roommate. The trial court commits error on the face of the record when it grants greater relief in a default judgment than the plaintiff requested in the plaintiff's pleading. See Binder v. Joe, 193 S.W.3d 29, 33 (Tex. App.-Houston [1st] 2006, no pet.) On this record, the trial court abused its discretion.
The trial court found that "[e]ach party represents and warrants that he or she has not incurred any outstanding debt, obligation, or other liability on which the other party is or may be liable, other than those described in this decree." The trial court found that the parties agreed to indemnify the other party for any liability that might arise other than those described in the decree, and ordered indemnification on that basis. Hendley complains that the record contains no agreement of the parties regarding indemnification. See Vazquez, 292 S.W.3d at 86-87 (holding trial court erred in entering agreed provisions of the decree in the absence of an agreement between the parties). The trial court abused its discretion by ordering indemnification based upon an agreement for which there is no evidence of in the record.
Finally, Hendley complains that the trial court abused its discretion by granting Lywiski the exclusive rights to attend school activities, to claim the children on his tax returns, to apply for a passport for the children, and to have the custodial accounts of the children placed under Lywiski's sole control. Hendley complains that the trial court heard no testimony that denying Hendley access to school activities would be in the best interest of the children. Hendley argues that the trial court abused its discretion by entering these orders without any testimony to support their entry.
Hendley has not shown error with regard to the orders relating to the children's financial affairs. A parent appointed as sole managing conservator has the exclusive right to make decisions of substantial legal significance concerning the children. Tex. Fam. Code Ann. § 153.132 (5) (West 2008). The decree makes Lywiski the person with whom the children will reside for the greater part of the year, for purposes of determining whether the children are dependents under the Internal Revenue Code. See In re S.L.M., 293 S.W.3d 374, 375-76 (Tex. App.-Dallas 2009, no pet.).
The terms of an order that restricts a parent's access to her children may not exceed what is necessary to protect the children's best interest. Tex. Fam. Code Ann. § 153.193 (West 2008). In the prove-up hearing, Lywiski offered no evidence that denying Hendley access to school activities would be in the children's best interest. The trial court erred in restricting Hendley's right to attend school activities in the absence of any evidence to support the order.
We sustain Hendley's issues in part. We affirm that part of the decree that grants a divorce. We also affirm that part of the decree that appoints Lywiski as the sole managing conservator of the children and appoints Hendley as the possessory conservator of the children. We reverse the property division, the visitation and support orders, and the award of attorney's fees. We remand the case to the trial court for further proceedings consistent with this opinion.
AFFIRMED IN PART; REVERSED AND REMANDED IN PART.