COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-08-365-CV
DONALD RAY WATSON APPELLANT
V.
DEBORAH R. WATSON APPELLEE
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FROM THE 231ST DISTRICT COURT OF TARRANT COUNTY
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OPINION
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In this restricted appeal,1 Donald Ray Watson appeals from a post-answer
default final decree divorcing him from Deborah R. Watson. In seven issues,
Donald argues that the evidence is legally and factually insufficient to support
those parts of the decree dividing the property and awarding spousal
maintenance to Deborah, and he contends that the decree recites an incorrect
1
… See Tex. R. App. P. 30.
postjudgment interest rate. We affirm in part, reverse and render in part, and
reverse and remand in part.
Background
Donald and Deborah married in 1992. Donald filed for divorce in
December 2007; Deborah filed a separate petition, and the two cases were
consolidated. On January 31, 2008, an associate judge signed a report noting
that Donald had failed to appear for a hearing and making several interim
awards in Deborah’s favor, including awards of $1,800 per month spousal
maintenance and $5,000 in interim attorney’s fees. The presiding judge
approved the report on the same day.
The trial court held a final trial on the merits on March 25, 2008. The
trial court noted on the record that Donald had again failed to appear despite
having received notice of trial. Deborah offered brief testimony; it comprises
fewer than six pages of the reporter’s record. Concerning the parties’ property
and her own attorney’s fees, Deborah testified as follows:
Q. And you’re asking for specific divisions of property; is that
correct?
A. Yes.
Q. And those are included in the decree that has been handed to
the judge; is that correct?
A. Yes.
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Q. Basically you’re asking for everything that’s in your possession
and he keep everything that’s in his possession?
A. Yes.
Q. And there are some bank accounts which you have no
knowledge of; is that correct?
A. Yes.
Q. Are you asking the Court to order him to keep those bank
accounts and any ensuing fees that regard that bank account --
those bank accounts?
A. Yes.
Q. There are also some doctor’s bills that he has incurred that you
have no knowledge of; is that correct?
A. Yes.
Q. And you’re asking the Court to make him responsible for
payment of all of those debts regarding any doctor’s fees, any
overcharges of the bank and anything dealing with those debts; is
that correct?
A. Yes.
Q. There’re also some other properties that you don’t know
anything about, and you don’t want to be responsible for that,
correct?
A. Yes.
Q. Are you asking the Court to approve the decree that’s been
shown to the judge and to order all of the division of property and
division of debt as requested –
A. Yes.
Q. -- and as -- and as delineated in the decree?
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A. Yes.
....
Q. There are also some orders regarding attorney’s fees and court
costs, and you’re asking the court to approve and order those; is
that correct?
A. Yes.
The only exhibit Deborah offered was a letter notifying Donald of the trial and
a certified mail receipt showing he received the letter.
Immediately after Deborah’s last answer recited above, the trial court
stated the following ruling on the record:
All right. Based upon a review of the file and based upon
Respondent’s Exhibit 1 that is admitted in this cause, which is the
notice letter to Mr. Watson, the Court approves the final decree
presented to me this morning finding that the decree results [in]:
One, a dissolution of the parties’ marriage and a just and right
division of the estate.
Again, the divorce is granted, and it’s rendered effective
today.
The trial court then signed a final decree of divorce—presumably the one
submitted by Deborah—that confirmed certain property as Deborah’s separate
property; divided the marital estate and debts; awarded Deborah a $15,000
judgment against Donald; ordered Donald to pay Deborah $1,800 per month in
spousal maintenance until April 1, 2011, or Deborah’s death or remarriage and
awarded Deborah a judgment for $3,600 for unpaid interim maintenance;
awarded Deborah’s attorney a judgment against Donald for $5,000 through trial
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and awarded Deborah a judgment for additional attorney’s fees on appeal if
Donald pursued an unsuccessful appeal; and recited that all sums awarded by
the decree would accrue postjudgment interest at the rate of ten percent per
annum compounded annually. The decree’s marital property division
disproportionately favored Deborah, awarding her all of the property in her
name and possession and half of some property in Donald’s name and
possession, including various retirement accounts.
Donald filed untimely motions for new trial and to extend appellate
deadlines; the trial court denied both motions. Donald then filed notice of this
restricted appeal.
Restricted Appeal
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); and (4) the complained-of error is apparent from the face of the
record. Tex. R. App. P. 30; Alexander v. Lynda’s Boutique, 134 S.W.3d 845,
848 (Tex. 2004); see Tex. R. App. P. 26.1(c). Only the fourth element—error
apparent on the face of the record—is at issue here. The face of the record, for
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the purpose of a restricted appeal, consists of all papers on file in the appeal,
including the reporter’s record. Norman Comms., Inc. v. Tex. Eastman Co.,
955 S.W.2d 269, 270 (Tex. 1997) (holding review on restricted appeal may
include legal and factual sufficiency of evidence issues).
Legal and Factual Sufficiency
In his first through fourth and sixth issues, Donald argues that the
evidence is legally and factually insufficient to support the trial court’s division
of community property and debt, the judgments against Donald, the award of
Deborah’s attorney’s fees, the confirmation of Deborah’s separate property, and
the award to Deborah of postdecree spousal maintenance. In his fifth issue, he
argues that Deborah failed to overcome the presumption against the award of
postdecree spousal maintenance.
1. Standard of Review
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 (Vernon 2006); Moroch v. Collins, 174 S.W.3d 849, 855 (Tex.
App.—Dallas 2005, pet. denied). The court has broad discretion in making its
just and right division, and absent a clear abuse of discretion, we will not
disturb that division. Murff v. Murff, 615 S.W.2d 696, 698–99 (Tex. 1981);
Boyd v. Boyd, 131 S.W.3d 605, 610 (Tex. App.—Fort Worth 2004, no pet.).
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In family law cases, the traditional sufficiency standard of review overlaps
with the abuse of discretion standard of review; therefore, 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. Boyd, 131 S.W.3d
at 611. Accordingly, to 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 engage in a two-pronged inquiry: (1) did the trial court
have sufficient evidence upon which to exercise its discretion, and (2) did the
trial court err in its application of that discretion? Id.; see also Moroch, 174
S.W.3d at 857. The applicable sufficiency review comes into play with regard
to the first question. Boyd, 131 S.W.3d at 611.
Evidence is legally insufficient only when (a) there is a complete absence
of evidence of a vital fact, (b) the court is barred by rules of law or of evidence
from giving weight to the only evidence offered, (c) the evidence offered to
prove a vital fact is no more than a scintilla, or (d) the evidence conclusively
establishes the opposite of the vital fact. Uniroyal Goodrich Tire Co. v.
Martinez, 977 S.W.2d 328, 334 (Tex. 1998), cert. denied, 526 U.S. 1040
(1999); see City of Keller v. Wilson, 168 S.W.3d 802, 810 (Tex. 2005). In
determining the legal sufficiency of evidence, we must consider evidence
favorable to the finding if a reasonable factfinder could and disregard evidence
contrary to the finding unless a reasonable factfinder could not. City of Keller,
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168 S.W.2d at 827. We must review all the evidence in the light most
favorable to the finding. Id.; Diamond Shamrock Ref. Co., L.P. v. Hall, 168
S.W.3d 164, 170 (Tex. 2005).
When there is no evidence or insufficient evidence to support the property
division or an award of attorney’s fees, we must reverse and remand for a new
trial. Sandone v. Miller-Sandone, 116 S.W.3d 204, 208 (Tex. App.—El Paso
2003, no pet.). When there is no evidence or insufficient evidence to support
a spousal maintenance claim, a trial court abuses its discretion by granting
spousal maintenance. Dunn v. Dunn, 177 S.W.3d 393, 397 (Tex.
App.—Houston [1st Dist.] 2005, pet. denied).
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); In re C.H., 89 S.W.3d 17, 26 (Tex. 2002).
A party who seeks to assert the separate character of property must prove that
character by clear and convincing evidence. Tex. Fam. Code Ann. § 3.003(b)
(Vernon 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) (Vernon 2008); Tex. Fam. Code Ann. § 101.007
(Vernon 2008); Transp. Ins. Co. v. Moriel, 879 S.W.2d 10, 31 (Tex. 1994).
In a legal sufficiency review of a finding that property is separate in character,
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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. In re J.F.C., 96 S.W.3d at 266.
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.
2. Analysis
Donald argues that the evidence presented at trial—Deborah’s five pages
of testimony—contains no evidence concerning the size of or assets in the
community estate, the value or extent of Deborah’s separate property, the
value of the property or debt awarded to either party, any basis for the
disproportionate award in favor of Deborah, any basis for determining whether
the trial court made a just and right division of the marital property and debts,
Deborah’s eligibility for postdecree spousal maintenance, and the
reasonableness and necessity of Deborah’s attorney’s fees.
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
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he testified, the appellee referred to the 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
[t]here is no evidence in the record of the value of any of the
property divided by the trial court. The real property is described
in the decree by a legal description. There is no evidence as to
improvements, if any, located on the land. There is no evidence
that the real property was appellee’s separate property.
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 to support a disproportionate division of the community estate. See
Wells v. Wells, 251 S.W.3d 834, 841 (Tex. App.—Eastland 2008, no pet.) (“A
disproportionate division must have a reasonable basis.”). There is no evidence,
let alone clear and convincing evidence, to overcome the community property
presumption and confirm certain property as Deborah’s separate property. See
Tex. Fam. Code Ann. § 3.003. There is no evidence to support the trial court’s
award of attorney’s fees to Deborah through trial or on appeal. There is no
evidence to support the trial court’s award of $15,000 to Deborah. There is
no evidence to support the trial court’s award of $3,600 to Deborah for unpaid
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spousal maintenance due under the associate judge’s report. There is no
evidence to support the award of postdecree spousal maintenance or overcome
the presumption against such an award. See id. §§ 8.051–.053 (Vernon 2006)
(setting out evidentiary requirements for maintenance award and establishing
presumption against maintenance). In short, there is no evidence to support
any part of the final decree except the provision granting the parties’ divorce,
which Donald does not contest.
Deborah argues that the awards in the final decree “are nearly identical”
to those in the associate judge’s report and that the report is some evidence
that supports the trial court’s final decree. In the absence of a written request
for a trial de novo, a referring court may adopt an associate judge’s findings of
fact, conclusions of law, and proposed order or judgment. Id. §§ 201.005(a),
201.014(a) (Vernon 2008). Three of the associate judge’s awards and
orders—the awards of spousal maintenance and attorney’s fees and the order
that Donald pay $15,000 to a mortgage company—appear at first glance
“nearly identical” to provisions in the final decree. But closer inspection reveals
that the associate judge’s report concerned only interim relief—interim
possession of marital property, interim payment of debts, interim spousal
maintenance, and interim attorney’s fees. The report says nothing about final
division of the marital estate and debts, confirmation of separate property, or
attorney’s fees on appeal. Moreover, the final decree orders Donald to pay
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$15,000 to Deborah, not to a mortgage company. Thus, to the extent Deborah
argues that the trial court merely adopted the findings, conclusions, and
proposed judgment of the associate judge, the differences between the
associate judge’s report and the final decree prove otherwise. Likewise, to the
extent that Deborah argues the associate judge’s report is itself “evidence,” the
report cannot support the final decree because of the fundamentally different
relief awarded by the two documents.
We hold that because Deborah presented no evidence concerning the
parties’ marital assets and debts; her own separate property; or her entitlement
to spousal maintenance, attorney’s fees, and money judgments, the trial court
lacked sufficient evidence upon which to exercise its discretion with regard to
these matters. See Moroch, 174 S.W.3d at 857; Boyd, 131 S.W.3d at 611.
This error is apparent on the face of the record. See Tex. R. App. P. 30;
Alexander, 134 S.W.3d at 848. We therefore sustain Donald’s first, second,
third, fourth, and sixth issues. Moreover, because Deborah failed to present
any evidence to rebut the presumption that she is not entitled to spousal
maintenance, we hold that the trial court abused its discretion by failing to
render a take-nothing judgment on her postdecree maintenance claim, and we
sustain Donald’s fifth issue. See Temple ISD v. English, 896 S.W.2d 167, 169
(Tex. 1995) (holding a presumption requires a finder of fact to reach a particular
conclusion in the absence of contrary evidence).
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Postjudgment Interest
In his seventh issue, Donald argues that the trial court erred by reciting
a postjudgment interest rate of ten percent per annum instead of six percent in
the final decree. Deborah concedes that the trial court so erred. We therefore
sustain Donald’s seventh issue.
Conclusion
Having sustained all of Donald’s issues, we affirm only that part of the
final decree that grants the parties’ divorce. We reverse the remainder of the
final decree, render judgment that Deborah take nothing by her spousal
maintenance claim, and remand the case for a new trial.
ANNE GARDNER
JUSTICE
PANEL: CAYCE, C.J.; GARDNER and MCCOY, JJ.
DELIVERED: April 30, 2009
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