Tammy LeJune Heap-Welch v. David Mark Welch

Affirm in part, reverse in part and remand; Opinion Filed October 28, 2020

In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-19-01260-CV

TAMMY LEJUNE HEAP-WELCH, Appellant
V.
DAVID MARK WELCH, Appellee

On Appeal from the 397th Judicial District Court
Grayson County, Texas
Trial Court Cause No. FA-18-0876

MEMORANDUM OPINION
Before Justices Schenck, Osborne, and Partida-Kipness
Opinion by Justice Schenck
In this restricted appeal of a default divorce decree, appellant, Tammy LeJune

Heap-Welch, challenges the division of the marital estate. We affirm the trial court’s

decree in part, reverse the decree in part, and remand the case for further proceedings

consistent with this opinion. Because all issues are settled in the law, we issue this

memorandum opinion. TEX. R. APP. P. 47.4.

BACKGROUND

On May 21, 2018, appellee, David Mark Welch, filed for divorce from

appellant. As grounds for divorce, appellee alleged insupportability. Although
appellant was served with the petition, she did not file an answer and did not appear

at the April 16, 2019 prove-up hearing.

Appellee was the only person who testified at that hearing, and his testimony

was brief. The reporter’s record consists of five pages. That record shows appellee

had been a resident of the State of Texas and a domiciliary of Grayson County for

the time period necessary to maintain his suit for divorce in Grayson County, and

that he and appellant had been separated for approximately two years. Appellee

presented a proposed decree to the court and represented that it included all of the

marital property.

The trial court granted the divorce at the conclusion of the hearing and signed

the form of decree presented by appellee without modification. In doing so, the court

found there were no children to the marriage and none were expected. The trial court

divided the marital estate and awarded appellant twenty-five percent of the net

proceeds from the receivership sale of certain real property in accordance with an

order of the County Court at Law in Ellis County in cause number 18-C-3239; all

personal property and effects in her possession or subject to her sole control, except

as otherwise awarded to appellee; cash in her possession or subject to her sole

control; all sums in retirement plans and benefits from plans existing by reason of

her employment; and all life insurance policies insuring her life. The trial court

awarded appellee twenty-five percent of the net proceeds from the receivership sale

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of certain real property in accordance with the order of the County Court at Law in

Ellis County in cause number 18-C-3239; all personal property and effects in his

possession or subject to his sole control; items in appellant’s (Tammy’s) possession

that were listed in an exhibit to the decree; cash in his possession or subject to his

sole control; all sums in retirement plans and benefits from plans existing by reason

of his employment; all life insurance policies insuring his life; and three vehicles.

The trial court also divided the marital debt, requiring appellee to pay the notes on

the vehicles and equipment he was awarded. On October 16, 2019, appellant

perfected this restricted appeal. See TEX. R. APP. P. 26.1(c), 30.

DISCUSSION

A restricted appeal is a direct attack on the judgment of the trial court. TEX.

R. APP. P. 30. Such an appeal must (1) be brought within six months after the

judgment was signed; (2) by a party to the underlying lawsuit; (3) who did not

participate in the hearing that resulted in the judgment complained of and did not

timely file any post-judgment motions or requests for findings of fact and

conclusions of law; and (4) complain of error apparent on the face of the record. Id.

26.1(c), 30; Ins. Co. of State of Pa. v. Lejeune, 297 S.W.3d 254, 255 (Tex. 2009).

For purposes of a restricted appeal, the record consists of all papers filed in the

appeal, including the reporter’s record. Norman Commc’ns v. Tex. Eastman

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Co., 955 S.W.2d 269, 270 (Tex. 1997); In re E.M.V., 312 S.W.3d 288, 290 (Tex.

App.—Dallas 2010, no pet.).

It is undisputed that appellant filed her notice of restricted appeal within six

months after the judgment was signed, that she was a party to the underlying suit,

and that she did not participate in the hearing that resulted in the complained-of

judgment or file any post-judgment motions. Thus, our analysis focuses on the

fourth element of a restricted appeal—whether error is apparent on the face of the

record in this divorce by default.

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. If the

respondent in a divorce case fails to answer or appear, the petitioner must present

evidence to support the material allegations in the petition. E.M.V., 312 S.W.3d at

291. Accordingly, a default judgment of divorce is subject to an evidentiary attack

on appeal. Agraz v. Carnley, 143 S.W.3d 547, 552 (Tex. App.—Dallas 2004, no

pet.). Here, appellant asserts the trial court abused its discretion in dividing the

marital estate because the evidence is legally and factually insufficient to support the

division.

Most appealable issues in a family law case are evaluated under an abuse of

discretion standard. In re A.B.P., 291 S.W.3d 91, 95 (Tex. App.—Dallas 2009, no

pet.). A trial court abuses it discretion when it acts in an arbitrary or unreasonable

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manner or when it acts without reference to any guiding principles. Worford v.

Stamper, 801 S.W.2d 108, 109 (Tex. 1990); A.B.P., 291 S.W.3d at 95. The trial

court generally does not abuse its discretion where at least some evidence of

substantive and probative character exists to support the trial court’s

decision. Agraz, 143 S.W.3d at 554.

Because the traditional sufficiency standards of review overlap with the abuse

of discretion standard in family law cases, legal and factual sufficiency are not

independent grounds of error but are relevant factors in our assessment of whether

the trial court abused its discretion. A.B.P., 291 S.W.3d at 95. To determine

whether the trial court abused its discretion because the evidence is insufficient to

support its decision, we consider whether the trial court (1) had sufficient evidence

upon which to exercise its discretion, and (2) erred in its exercise of that

discretion. Id. We conduct the applicable sufficiency review with regard to the first

question. Id. We then proceed to determine whether, based on the elicited evidence,

the trial court made a reasonable decision. Moroch v. Collins, 174 S.W.3d 849, 857

(Tex. App.—Dallas 2005, pet. denied).

The trial court must divide the community estate “in a manner that the court

deems just and right.” FAM. § 7.001; see also E.M.V., 312 S.W.3d at 291 (trial

court’s division of community estate must be equitable). However, the trial court’s

discretion is not unlimited, and the record must show some reasonable basis for the

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division. Sandone v. Miller–Sandone, 116 S.W.3d 204, 208 (Tex. App.—El Paso

2003, no pet.) (trial court abused its discretion in division of marital property when

there was no evidence of value of property); see also E.M.V., 312 S.W.3d at 291

(record must show some reasonable basis for unequal division of property).

In this case, appellant’s testimony was limited to the mere fact that the decree

he presented to the court divided all of the marital property. The record does not

reflect that the court was apprised of any information regarding the value of the

property or debts nor does it establish that the division was, as a result, fair and

equitable. Accordingly, the trial court had insufficient evidence to divide the

property equitably and thus abused its discretion in its division of the estate of the

parties. See E.M.V., 312 S.W.3d at 291; O’Neal v. O’Neal, 69 S.W.3d 347, 350

(Tex. App.—Eastland 2002, no pet.). Accordingly, with respect to the trial court’s

division of the marital estate, there is error on the face of the record. See E.M.V.,

312 S.W.3d at 291; Watson v. Watson, 286 S.W.3d 519, 525 (Tex. App.—Fort

Worth 2009, no pet.). We sustain appellant’s sole issue.

CONCLUSION

When insufficient evidence supports a default judgment, the proper remedy is

remand, not rendition. See Bennett v. McDaniel, 295 S.W.3d 644, 645 (Tex. 2009).

Accordingly, we reverse the portion of the divorce decree addressing the division of

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property and remand for further proceedings consistent with this opinion. In all other

respects, we affirm the decree.

/David J. Schenck/
DAVID J. SCHENCK
JUSTICE

191260F.P05

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 Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT

TAMMY LEJUNE HEAP-WELCH, On Appeal from the 397th Judicial
Appellant District Court, Grayson County,
Texas
No. 05-19-01260-CV V. Trial Court Cause No. FA-18-0876.
Opinion delivered by Justice
DAVID MARK WELCH, Appellee Schenck. Justices Osborne and
Partida-Kipness participating.

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 that portion
of the trial court's judgment dividing the marital property. 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 TAMMY LEJUNE HEAP-WELCH recover
her costs of this appeal from appellee DAVID MARK WELCH.

Judgment entered this 28th day of October, 2020.

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