Opinion
No. 10-05-00184-CV
Opinion delivered and filed October 5, 2005.
Appeal fromthe 233rd District Court, Tarrant County, Texas, Trial Court No. 233-369656-04.
Reversed and remanded.
Before Cheif Justice GRAY, Justice VANCE, and, Justice REYNA.
MEMORANDUM OPINION
Jimmy Padilla filed for divorce. A status hearing was set and neither Becky Padilla nor her attorney appeared. The trial court heard Jimmy's petition and granted the divorce. Because the trial court heard no evidence regarding the valuation of the marital estate, it abused its discretion in dividing the property. We reverse and remand.
Because her last issue is dispositive of this appeal, we address that issue first. In her sixth and final issue, Becky contends that the trial court abused its discretion in making its division of the property. Becky preserved this issue for review in her first motion for new trial.
Becky alleges that Jimmy did not present evidence to the trial court as to the value of any of the personal or real property, retirement benefits, or liabilities of the marriage. If a respondent in a divorce case fails to answer or appear, the petitioner must present evidence to support the material allegations in the petition. Osteen v. Osteen, 38 S.W.3d 809, 814 (Tex.App.-Houston [14th Dist.] 2001, no pet.); see TEX. FAM. CODE ANN. § 6.701 (Vernon 1998). See also Mohamed v. Elyan, No. 05-01-02001-CV, 2001 Tex. App. LEXIS 8031 (Tex.App.-Dallas Nov. 8, 2002, no pet.) (not designated for publication).
In eight pages of testimony, four were dedicated to the property division. Because Becky did not appear at the hearing, only Jimmy testified. But Jimmy presented no evidence regarding the value of any of the property divided by the trial court. The only value testified to was a $20,000 loan that Jimmy agreed to be responsible for. In a decree of divorce, a trial court must order a division of the marital estate "in a manner that the court deems just and right, having due regard to the rights of each party and any children of the marriage." Tex. Fam. Code Ann. § 7.001 (Vernon 1998). The trial court proceeded with a division of the property, retirement, and liabilities without having any means to determine whether that division was just and right. Therefore, the trial court abused its discretion in making its division of the estate. Becky's sixth issue is sustained.
Because we sustain Becky's sixth issue, we need not discuss her remaining issues.
The trial court's judgment is reversed and, in the interest of justice, the entire case is remanded to the trial court for further proceedings.