## NUMBER 13

- 20

- 00 313

- C V

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI

– EDINBURG

IN THE MATTER OF THE MARRIAGE OF

NATALIA KORNEGAY FLORES AND RENE FLORES

On appeal from the County Court at Law No. 2

of Hidalgo C ounty, Texas.



## MEMORANDUM OPINION

Before Chief Justice Contreras and Justices Hinojosa and Silva

Memorandum Opinion by Justice Silva

This is a restricted appeal from a final decree of divorce

. Appellant Rene Flores

raises three issues in which he alleges that the final decree of divorce should be set aside

because : (1) he did not receive notice of the final hearing; (2) the evidence was legally

and factually insufficient to support the division of the marital property and debts ; and

(3) “ patent errors and misstatements and blanks in the [decree] render it void or voidable. ”

We affirm in part, and reverse and remand in part

.2 I. B ACKGROUND

On December 9, 2014, appellee Natalia Kornegay Flores 1 filed for divorce from

Flores. Kornegay ’ s petition stat ed in part that the parties “ were married on or about May

22, 1992, and ceased to live together as husband and wife on or about December 2014. ”

There were no children of the marriage. Flores filed an original answer on February 6,

2015.

At the outset, we note that t he clerk’s record on appeal contains few copies of

filings between 201 4 and 20 20 , when the divorce decree was signed . However, a case

summary in the record indicates several hearings were set in that period , including one

on a motion for a temporary restraining order , presumably filed by Kornegay

. 2

On October 13, 2017, Flores ’ s trial counsel filed a motion to withdr a w and sent

notice to Kornegay ’ s counsel and to Flores at 216 Birch Street, Donna, Texas. 3 The trial

court ’ s signed order granting counsel ’ s motion to withdraw does not appear in the record

. 4

According to the case summary, t here was only one hearing setting in 2018, but the

record does not reflect what, if anything, transpired at that hearing

.

On November 2 5

, 2019, the trial court issued an order setting the case for a final

hearing on January 13, 2020. The order indicates that it was sent to Kornegay’s counsel

1 Kornegay has not filed a brief to assist us in the resolution of this appeal.

2 The trial court ’s docket entry indicates that Flores was ordered to leave the couple’s “shared

residence” by November 10, 2016.

3 On appeal, Flores maintains this is the address that he resided at when the final hearing notice

was sent.

4 The case summary indicates that the trial court granted Flores’s trial counsel’s motion to withdraw

at a hearing on the motion on or about November 13, 2017.3 and to Flores at 826 North 7th Street, Alamo, Texas

. 5 No other information concerning

service of notice is in the record. Further, the record does not reflect where Flores resided

at the time notice was sen t or whether Flores had provided the clerk of the court with his

updated address

, if it had changed. See T EX

. C IV

. P RAC

. & R EM

. C ODE A NN . § 30.015

(providing parties have an obligation to notify the clerk of the court with written notice if

the party changes its address during the course of civil litigation)

.

At the January 13, 2020 hearing

, Kornegay and her counsel were present but

Flores did not appear

. After Kornegay ’ s counsel stated on the record that notice was

provided to “ the address [Flores] resides at, ” the trial court proceeded. Kornegay was the

sole witness

, and her testimony was brief.

The decree of divorce was signed by the trial court on January 23, 2020

, and the

marital assets were divided as follows : Flores was awarded “ [t]he business known as

FLORES CONCRETE FINISHERS, including but not limited to all furniture, fixtures,

machinery, equipment, inventory, cash, receivables, accounts, goods, and supplies

. . . . ”

Kornegay was awarded real property located at 826 North 7th Street, Alamo, Texas ; real

property located at 521 South Huisache, Pharr, Texas ; three vehicles; and a “ horse

trailer. ” Additionally, t he order decreed that each spouse be responsible for several

outstanding debts

. The decree further perm anen tly enjoined Flores from communicating

5 At the bottom of the trial court ’ s setting order, the following language appears:

CC:

Hector Bustos, The Law Office of Hector Bustos; 220 S. Jackson Road, Edinburg Texas

78539

. . . . Rene Flores; 826 N. 7th St. Alamo, Tx. 785164 with Kornegay or “ [c]oming within 25 feet of, entering, or remaining on the premises of

the residence of [Kornegay], located at 826 North 7th Street, Alamo, Texas. ”

On July 23, 2020, Flores filed a notice of restricted appeal.

II. R ESTRICTED A PPEAL

To prevail on a restricted appeal, an appellant must demonstrate:

(1) he filed notice of the restricted appeal within six months after the

judgment was signed;

(2) he was a party to the underlying lawsuit;

(3) he 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) error is apparent on the face of the record.

Ex parte E.H.

, 602 S.W.3d 486, 495 (Tex. 2020) (citing Pike

- Grant v. Grant

, 447 S.W.3d

884, 886 (Tex. 2014) (per curiam)) ; see T EX

. R. A PP

. P

. 30

. “ For these purposes, the ‘ face

of the record ’ consists of all the papers that were before the trial court at the time it

rendered judgment. ” Ex p arte Vega

, 510 S.W.3d 544, 547 (Tex. App.

— Corpus Christi

–

Edinburg 2016, no pet.)

. “ The requirement that error be apparent on the face of the record

means that ‘ error that is merely inferred [from the record ] will not suffice. ’” Id. (quoting

Ginn v. Forrester

, 282 S.W.3d 430, 431 (Tex. 2009) (per curiam) (alteration in original) )

.

Flores established the first three elements

. See id

. Thus, the only remaining issue

is whether Flores has demonstrated that any of the errors he complains of

— namely, that

the trial court failed to notify him of the setting and that the evidence presented was

factually and legally insufficient to support the decree

— are apparent from the face of the5 record. See T EX

. R. A PP

. P

. 30 ; Eguia v. Eguia

, 367 S.W.3d 455, 459 (Tex. App.

— Corpus

Christi

– Edinburg 2012, no pet.)

.

III. N OTICE

Flores argues he did not participate in the final hearing because the trial court failed

to notify him of the setting

, and such error is apparent from the record

. Having reviewed

the record, we are unable to agree

. See Ginn , 282 S.W.3d at 432

– 33; Ex p arte Vega , 510

S.W.3d at 547.

An appellant who alleges error apparent on the face from the record due to the

absence of notice carries a heavy burden because there exists a presumption that notice

occurred, Brandon v. Rudisel , 586 S.W.3d 94, 99 (Tex. App.

— Houston [14th Dist.] 2019,

no pet.), and “ t he absence of proof in the record that notice was provided does not

establish error on the face of the record

. ” Ginn , 282 S.W.3d at 433 (observing additionally

that “rules do not impose upon the clerk an affi rmative duty to record the mailing of the

required notices”)

.

Although several inferences may be made, the record is unclear as to : (1) where

Flores resided at the time the notice was issued; and ( 2 ) what address was on file for

Flores at the time notice was issued

. See Ginn , 282 S.W.3d at 433 (concluding error not

apparent on the face of the record where record was silent regarding notice) ; Wolfe v.

Grant Prideco, Inc. , 53 S.W.3d 771, 774 (Tex. App.

— Houston [1st Dist.] 2001, pet.

denied) (concluding same where nothing “ shows that the address in the court ’ s central

register was incorrect on the date the notices were sent or that [appellant] did not, in fact,

receive it”) ; s ee generally T EX

. C IV

. P RAC

. & R EM

. C ODE A NN . § 30.015

. Thus , we are

unable to determine from the face of the record whether notice was issued erroneously6 as Flores claims. See Ex p arte Vega , 510 S.W.3d at 547.

We overrule Flores’s first issue.

IV. D IVISION OF M ARITAL E STATE

By his second issue, Flores asserts that the evidence provided at the hearing was

factually and legally insufficient to support the decree. Specifically, he avers that the trial

court had no reasonable basis for dividing the community estate disproportionately in

Kornegay ’ s favor and such error is apparent on the face of the record

. For reasons set

forth below, w e agree.

A. Standard of Review and Applicable Law

We review a trial court ’ s division of property under an abuse of discretion standard.

Bradshaw v. Bradshaw

, 555 S.W.3d 539, 543 (Tex. 2018). “ [A] t rial court has no discretion

in determining what the law is or applying the law to the facts. ” Id

. (quoting In re State

Farm Lloyds

, 520 S.W.3d 595, 604 (Tex. 2017)).

Pursuant to the Texas Family Code, “ [i] n a decree of divorce

. . . , the court shall

order a division of the estate of the parties in a manner that the court deems just and right,

having due regard for the rights of each party

. . . . ” T EX

. F AM

. C ODE A NN

. § 7.001

. “ [T]he

phrase ‘ estate of the parties ’ encompasses the community property of a marriage. ”

Pearson v. Fillingim

, 332 S.W.3d 361, 362 (Tex. 2011) (per curiam). “ Although a trial court

does not have to divide the marital estate equally

, it must do so equitably. ” Kaftousian v.

Rezaeipanah

, 511 S.W.3d 618, 622 (Tex. App.

— El Paso 2015, no pet.); s ee also

Willmore v. Alcover

, No. 13

- 16

- 00180

- CV, 2018 WL 1417556, at *3 (Tex. App.

— Corpus

Christi

– Edinburg Mar. 22, 2018, no pet.) (mem. op.). The onus is on t he parties to provide

the trial court with “ sufficient information upon which to exercise its discretion

. ” Sandone7 v. Miller

- Sandone

, 116 S.W.3d 204, 206 (Tex. App.

— El Paso 2003, no pet.); see Murff v.

Murff

, 615 S.W.2d 696, 699 (Tex. 1981) (listing non

- exclusive factors a trial court

considers in an unequal division of the marital estate)

. “ There is generally no abuse of

discretion on grounds of insufficiency if some probative evidence supports the trial court ’ s

findings. ” Banker v. Banker

, 517 S.W.3d 863, 870 (Tex. App.

— Corpus Christi

– Edinburg

2017, pet. denied) ; see Sandone , 116 S.W.3d at 206 ; see also B.K. v. T.K.

, No. 02

- 19

-

00472

- CV, 2021 WL 2149621, at *3 (Tex. App.

— Fort Worth May 27, 2021, no pet.) (mem.

op.) ( “ Evidence is legally insufficient to support a decree ’ s property division when no

evidence of the divided property ’ s value is adduced. ” ).

B. Analysis

Kornegay ’ s counsel elicited limited testimony from Kornegay at the hearing.

Testimony concerning the division of community assets reads in its entirety :

[Counsel:] There ’ s real property and there ’ s other assets that are part of

the community estate?

[ Kornegay :] Yes.

[Counsel:] And you have itemized exactly what you ’ re going to keep and

what he ’ s going to keep?

[ Kornegay :] Yes.

[Counsel:] In this final divorce decree there was a business

— Flores

Concrete which you will give to your husband, or that you will

relinquish your 50 percent interest of the business to your

husband?

[ Kornegay :] Yes.

[Counsel:] And he ’ ll be responsible for all taxes that are due and are left

owing

. . . ?

[ Kornegay :] Yes.8 [Counsel:] And you ’ ve itemized the property that will go to you at 826

North 7th Street, Alamo, Texas, 78516?

[ Kornegay :] Yes.

[Counsel:] And there ’ s several vehicles, there ’ s a GMC Yukon, there ’ s a

Chevrolet Silverado, 2004, and an ‘ 88 dump truck, a GMC,

that will be in your possession?

[ Kornegay :] Yes, sir.

No exhibits were offered or admitted. See Banker

, 517 S.W.3d at 871 ( providing that a

party ’ s inventory must be admitted into evidence before “ it may

. . . be considered as

evidence of a property ’ s characterization of value ” ). N o other document in the record

indicates the value of any part of the marital estate or debts

. See Watson v. Watson , 286

S.W.3d 519, 524 (Tex. App.

— Fort Worth 2009, no pet.) (concluding the trial court abused

its discretion where “[t] here is no evidence of the extent or value of the marital estate or

debts,” and “[t]here is no evidence to support a disproportionate division of the community

estate”); see also Pena v. Pena , No. 13

- 17

- 00585

- CV, 2018 WL 3301920, at *2 (Tex.

App.

— Corpus Christi

– Edinburg July 5, 2018, no pet.) (mem. op.) (concluding the same

where “ a review of the record shows a total absence of evidence in support of an unequal

division of property,” and the parties “ only identified the items to be divided” but did not

“testify [to] or otherwise introduce any evidence into the record in support of any of the

factors that a trial court may consider in unequally dividing the parties’ community

estate”).

W e conclude that there is no evidence in the record to support the trial court ’ s

division and that without sufficient evidence to make such a decision, the trial court

abused its discretion. See Watson , 286 S.W.3d at 524; c f

. Schindler v. Schindler

, No. 13

-9 16

- 00483

- CV, 2018 WL 3151857, at *6 (Tex. App.

— Corpus Christi

– Edinburg June 28,

2018, no pet.) (mem. op.) (concluding that appellant “ did not meet his burden to show

that the trial court ’ s division was an abuse of discretion ” where “ an exhibit was admitted

showing a proposed property division based on the values of the community property and

debts owed ” )

. Accordingly, with respect to the trial court’s division of the marital estate,

including community debts, we conclude there is error on the face of the record. See Ex

parte E.H. , 602 S.W.3d at 495.

We sustain Flores ’ s second issue. See Cohen v. Bar , 569 S.W.3d 764, 773 (Tex.

App.

— Houston [1st Dist.] 2018, pet. denied) (“If a court of appeals finds reversible error

that materially affects the trial court’s ‘just and right’ division of property , then it must

remand the entire community estate for a new division of the property .” (quoting Wilson

v. Wilson , 132 S.W.3d 533, 536 (Tex. App.

— Houston [1st Dist.] 2004, pet. denied))).

V. V OID D ECREE

By Flores’s third issue, he asserts the “patent errors and misstatements and blanks

in the divorce decree rendered it void or voidable.”

Flores does not, however, support this issue with references to relevant authority

or to the record , presenting instead a largely conclusory argument

. 6 Accor dingly, we

overrule the issue as inadequately briefed. See T EX

. R. A PP

. P. 38.1(i) ; JNM Express, LLC

6 Flores’s argument is as follows:

In the case at bar, as detailed in the Statement of Facts above, contradictions, unfilled

blanks which require essential identifying information, and clear misstatements abound.

Such Decree is unenforceable and should be declared void by this court, the judgment

reversed and remanded for trial in the court below.

The only authority which precedes these conclusory statements concern s a trial court’s inability to amend,

modify, alter, or change the final decree under “[ §] 3.71 of the Texas Family Code

, ” a since repea l ed

provision.10 v. Lozano , 627 S.W.3d 682, 697 (Tex. App.

— Corpus Christi

– Edinburg 2021, pet

. filed )

(concluding an issue inadequately brief ed where “ [a] ppellants fail to cite the record at all

during this argument, and they only cite a single case, without any explanation as to how

the case supports their position”); see also In re K.S.

, No. 13

- 19

- 00416

- CV, 2021 WL

317656, at *6 (Tex. App.

— Corpus Christi

– Edinburg Jan. 28, 2021, no pet.) (mem. op.)

(concluding same where appellant’s “argument in support of this issue is conclusory,” and

“she fails to support her argument with citation to the record or pertinent authority” ). We

overrule Flores’s third issue.

V I

. C ONCLUSION

H aving sustained Flores’s second issue, we reverse the portion of the judgment

addressing the division of community property, including debts, and we remand for further

proceedings consistent with this memorandum opinion. The remainder of the j udgment,

including the provision granting the parties’ divorce, is affirmed.

CLARISSA SILVA

Justice

Delivered and filed on the

21st day of December, 202 1

.