Opinion
05-22-01216-CV
04-19-2024
IN THE INTEREST OF A.A., H.A., AND R.A., CHILDREN
On Appeal from the 256th Judicial District Court Dallas County, Texas Trial Court Cause No. DF-20-14416
Before Justices Molberg, Pedersen, III, and Nowell, J.
MEMORANDUM OPINION
KEN MOLBERG JUSTICE.
Mother appeals a no-answer default divorce decree. She argues the trial court erred in (1) rendering default judgment against her without her knowledge, (2) awarding certain exclusive rights to Father when the evidence does not support such an award, and (3) transferring and distributing properties based upon Father's false financial numbers. We reverse and remand in part and affirm in part.
Background
Father, Thiruneela Athysivam, petitioned for divorce from Mother, Kanahanithy Athysivam. Mother and Father had three children together: H.A., R.A., and A.A. Father filed a first amended original petition for divorce on July 12, 2021. The record reflects Mother was served on July 22, 2021, and two returns of service were filed with the trial court on August 6, 2021, and August 22, 2022. Mother never filed an answer or participated in the proceedings.
The cause was heard by the trial court on October 18, 2022. Father testified the marriage had become insupportable because of discord or conflict with no chance of reconciliation. He said he was asking the court to find that the parenting plan included in the proposed final decree of divorce was in the best interest of the children. Father wanted himself and Mother to be appointed joint managing conservators; he said he believed it was important for them to share in making decisions for and raising the children together. Father sought the exclusive right to designate the children's primary residence within Dallas County, where Mother lived, or Van Zandt County, where he lived.
Father also sought the exclusive right to consent to decisions regarding mental health, invasive procedures, and educational matters for the children, but wanted to consult with Mother before making any decision. He said he had concerns about Mother making "some radical decisions or making some allegations" against him previously.
Father testified he was seeing his children on weekends and holidays, as in a standard possession order, at the time of trial. He was asking the court to order that possession and access schedule continue with the final decree and believed it was in the children's best interest. Father was agreeable to pay child support and had calculated $2,043.09 per month as the proper amount. Mother currently covered the children's health insurance, and Father asked for that to continue. Father also asked the trial court to order that they share the uninsured expenses of the children fiftyfifty.
Father stated he believed the proposed property division in the default decree was just, right, and fair. Under that division, Mother would get the Dallas County property, where she lived, and Father would get the Van Zandt County property, where he lived. He said he deserved the Van Zandt property because he purchased it, had been paying the mortgage, meeting all its expenses, and working on it following a tornado. He also offered into evidence an inventory and appraisement that detailed the parties' community estate. Among other things, this document reflected an approximate $450,000 net equity in the Dallas County property and $549,853 net equity in the Van Zandt property. Father also offered into evidence bank statements, vehicle pricing reports, and a spreadsheet detailing the couple's financial accounts, retirement benefits, business interests, motor vehicles, household furniture, electronics, livestock, and community debts. In sum, Father estimated the net estate to be worth $1,308,626.28; he proposed an award of $778,610.78, nearly sixty percent of the estate, to Mother and $530,015.50 to himself.
The trial court rendered a default final decree of divorce on October 18, 2022. Mother and Father were appointed joint managing conservators of the children and shared most rights and duties pertaining to them. In section 8.3 of the decree, Father was granted the following exclusive rights:
• after consultation with Mother, to designate the primary residence of the children within Dallas County or Van Zandt County;
• to consent to medical, dental, and surgical treatment involving invasive procedures (non-emergency);
• after consultation with Mother, to consent to psychiatric and psychological treatment of the children;
• after consultation with Mother, to represent the children in legal actions and to make other decisions of substantial legal significance concerning the children;
• after consultation with Mother, to consent to marriage and to enlistment in the armed forces of the United States;
• after consultation with Mother, to make decisions concerning the children's education-should the child attend public school, the public school the child attends shall be determined by Father's address or Mother's address, as determined by Father;
• after consultation with Mother, to the services and earnings of the children, except as provided by § 264.0111 of the family code;
• after consultation with Mother, to act as an agent of the children in relation to their estates if action is required by a state, the United States, or a foreign government;
• the independent duty to manage the estates of the children to the extent the estates have been created by community property or the joint property of the parents; and
• to apply for a passport for the child, renew the child's passport, and maintain possession of the child's passport.
Despite being addressed in section 8.3 as described above, the decree also specified in section 8.5 that, notwithstanding any provision in the decree to the contrary, Father had the exclusive right to enroll the children in school. And in section 8.6, it again specified he had the exclusive right to designate the children's primary residence within Dallas County or Van Zandt County.
Mother was granted the exclusive right to receive and give receipt for periodic payments for the support of the children and to hold or disburse these funds for the benefit of the children. The decree also specified she was granted the right to be consulted on Father's exclusive rights to consent to medical, dental and surgical treatment; psychiatric and psychological treatment of the children; represent the children in a legal action; marriage and enlistment in the armed forces; make decisions concerning the children's education; the services and earnings of the children; act as an agent of the children in relation to the children's estates; and apply for a passport for a child. She was also given the independent duty to manage the estates of the children to the extent the estates are created by community property or the joint property of the parent.
Father was awarded the Van Zandt County property. He was also awarded all sums of cash subject to his sole control, including funds on deposit in banks, savings institutions, or other financial institutions, two of the couple's motor vehicles, and 100 percent of Natural Ranchers, LLC and its assets. Mother was awarded the Dallas County property, all sums of cash subject to her sole control, including funds on deposit in banks, savings institutions, or other financial institutions, 100 percent of her retirement benefits, and two of the couple's motor vehicles.
Discussion
Mother first complains the trial court erroneously rendered a default judgment because she did not have knowledge of the proceedings. "The three methods for seeking to set aside a default judgment are by direct appeal, restricted appeal, or equitable bill of review." Yezak v. State, No. 05-21-01046-CV, 2023 WL 4286025, at *2 (Tex. App.-Dallas June 30, 2023, no pet.) (mem. op.). When a party pursues a direct appeal of a no-answer default judgment, as here, "a motion for new trial is required to preserve issues for appellate review." Id. (citing TEX. R. CIV. P. 324(b)(1)).
Mother filed her motion to set aside the judgment outside the thirty-day window, see TEX. R. CIV. P. 329B(A), AND DID NOT COMPLAIN IN HER MOTION THAT SHE DID NOT RECEIVE NOTICE OF THE JUDGMENT TWENTY OR MORE DAYS AFTER IT WAS RENDERED, see TEX. R. CIV. P. 306A(4). ACCORDINGLY, WE CONCLUDE HER LATE-FILED MOTION FOR NEW TRIAL FAILED TO PRESERVE HER COMPLAINT REGARDING THE DEFAULT JUDGMENT. See Red Bluff, LLC v. Tarpley, 679 S.W.3d 211, 217 (Tex. App.-Houston [14th Dist.] 2023, pet. filed) (concluding late-filed motion for new trial was ineffective to preserve for appellate review matters requiring a motion for new trial under rule 324(b)); see TEX. R. CIV. P. 324(B)(1). MOTHER'S FIRST ISSUE IS OVERRULED.
Mother next challenges the evidentiary bases for the trial court's conservatorship decisions and property division. As we have stated previously,
As a general rule, when a defendant fails to answer, as here, no evidence is required to support a default judgment because that failure to answer is taken as an admission of the factual allegations in a plaintiff's petition. See Agraz v. Carnley, 143 S.W.3d 547, 552 (Tex. App.- Dallas 2004, no pet.). However, that general rule is limited in a divorce case. 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. THUS, IF A RESPONDENT IN A DIVORCE CASE FAILS TO ANSWER OR APPEAR, THE PETITIONER MUST STILL PRESENT EVIDENCE TO SUPPORT THE MATERIAL ALLEGATIONS IN THE PETITION. Vazquez v. Vazquez, 292 S.W.3d 80, 83-84 (Tex. App.-Houston [14th Dist.] 2007, no pet).Short v. Short, No. 05-21-00095-CV, 2022 WL 405821, at *1 (Tex. App.-Dallas Feb. 10, 2022, no pet.) (mem. op.). Accordingly, a default judgment of divorce is subject to an evidentiary attack on appeal. See Agraz, 143 S.W.3d at 552; Gonzalez v. Gonzalez, 331 S.W.3d 864, 866 (Tex. App.-Dallas 2011, no pet.).
In family law cases, the traditional sufficiency standard of review overlaps with the abuse of discretion standard of review: legal and factual insufficiency are not independent grounds of error but are relevant factors in our assessment of whether the trial court abused its discretion. Moroch v. Collins, 174 S.W.3d 849, 857 (Tex. App.-Dallas 2005, pet. denied). "[T]o determine whether there has been an abuse of discretion because the evidence is legally or factually insufficient to support the trial court's decision, we use a two-pronged inquiry: (i) did the trial court have sufficient evidence upon which to exercise its discretion, and (ii) did the trial court err in its application of that discretion." In re W.R.B., No. 05-12-00776-CV, 2014 WL 1008222, at *3 (Tex. App.-Dallas Feb. 20, 2014, pet. denied) (mem. op.).
We first consider Mother's challenge to the final decree's conservatorship rulings granting certain exclusive rights to Father. The best interest of the child is the primary consideration of the court in determining the issues of conservatorship and possession of and access to the child. TEX. FAM. CODE § 153.002. Factors which may be considered in deciding what is in the best interest of the children include: (1) desires of the children; (2) emotional and physical needs of the children now and in the future; (3) emotional and physical danger to the children now and in the future; (4) parental abilities of the individuals involved; (5) programs available to those individuals to promote the best interest of the children; (6) plans for the children by these individuals; (7) stability of the home; (8) acts or omissions of the parent which may indicate that the existing parent-child relationship is not proper; and (9) any excuse for the acts or omission of the parent. See Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976).
There is no evidence in the record as to any of these factors from which the trial court could have determined the best interest of the children. Father testified generally he believed the final decree was in the best interest of the children and he had concerns about Mother "making some radical decisions" or "making some allegations" against him. This testimony was conclusory and vague and by itself cannot support the decree. See In re O.A.L., No. 05-22-00563-CV, 2024 WL 909829, at *3 (Tex. App.-Dallas Mar. 4, 2024, no pet. h.) (mem. op.). We sustain Mother's second issue.
Finally, Mother argues some of Father's evidence relating to the community estate was false and the resulting division of property was fraudulent. In reviewing the sufficiency of the evidence, however, we cannot consider the factual assertions made in Mother's brief that are unsupported by the record. See Sink v. Sink, 364 S.W.3d 340, 345 (Tex. App.-Dallas 2012, no pet.). In a divorce, the trial court shall order a division of the parties' estate in a manner the court deems just and right, having due regard for the rights of each party. TEX. FAM. CODE § 7.001. The trial court is afforded broad discretion in dividing the community estate, and we must indulge every reasonable presumption in favor of the trial court's proper exercise of its discretion. In re Marriage of C.A.S. &D.P.S., 405 S.W.3d 373, 384 (Tex. App.- Dallas 2013, no pet.). Although the trial court is not required to divide the community estate equally, its division must be equitable. In re E.M.V., 312 S.W.3d 288, 291 (Tex. App.-Dallas 2010, no pet.). The trial court's discretion is not unlimited, and there must be some reasonable basis for unequal division. Id.
The record before us reflects the trial court had sufficient evidence to make a division of the community property, and we cannot conclude the trial court abused its discretion in making the division it did. Although the evidence shows that the Van Zandt property is more valuable than the Dallas property awarded Mother, given that the division of the rest of the estate favored Mother, we cannot conclude Mother has shown the trial court abused its discretion in dividing the property as it did. Mother's third issue is overruled.
Conclusion
We reverse the portions of the trial court's judgment addressing the exclusive conservatorship rights awarded to Father. We affirm the judgment in all other respects, including the portion of the decree granting a divorce. See Short, 2022 WL 405821, at *3.
JUDGMENT
In accordance with this Court's opinion of this date, the judgment of the trial court is AFFIRMED in part and REVERSED in part. We REVERSE those portions of the judgment dealing with exclusive conservatorship rights. In all other respects, the trial court's judgment is AFFIRMED. We REMAND this cause to the trial court for further proceedings consistent with this opinion.
It is ORDERED that appellant Kanahanithy Athysivam recover her costs of this appeal from appellee Thiruneela Athysivam.