## In the Court of Appeals Second Appella te District of Texas

at Fort Wo rth

______ _____________________ No. 02

- 19

- 00472

- CV

___________________________

On Appeal from the 442nd District Court Denton County, Texas Trial Court No. 19

- 6678

- 442 Before Sudderth, C.J.; Kerr and Birdwell, JJ. Memorandum Opinion by Chief Justice Sudderth



### B.K. , Appellant
V 

### . T.K. , Appellee2 MEMORANDUM OPINION Wife B.K. file d this restricted appeal from the trial c ourt ’ s no - an swer default judgment against her in th e underlying divorce proceeding
. Although the recor d shows that Wife was properly served and received presumptive notic e of the judgment ’ s e ntr y, we nevertheless reverse and remand b ec ause Husband T.K. did not present sufficient evidence to support the trial court ’ s property divis ion or the orders concerning the parti es ’ child
.

R estricted Appeal R equirements T o prevail in this restricted appeal, Wife mu st show that ( 1) she timely filed a not ice of restricted appeal , (2) she was a party to the underlying suit , (3) she did not participate in the hearing that resulted in the complained

- of judgment and did not timely file eithe r a postjudgment motion , request for findings of fact and conclus ions of law , or a notice of appeal within the time permitted by Rule 26.1(a) , and (4) error is apparent from the face of the rec ord. S ee Tex. R. App. P. 26.1(c), 30; Alexander v. Lynda ’ s Bou tique , 134 S.W.3d 845, 8 48 (Tex. 2004); In re S.W. , 614 S.W .3d 311, 313

– 14 (Tex. App.

— Fort Worth 2020, no pet.) (mem. op.)
. The first th ree elements are necessary to invoke our restricted

- appeal juri sdiction, but the fourth is not. Ex parte E.H. , 602 S.W .3d 486, 496 (Tex. 2020). P res ervation Husband does not cha lleng e th at Wif e met the three jurisd ic tional requirements
to maintain a restricted appeal. Instead, he co ntend s that because the record sho ws3

that the trial court properly notified Wife of the ju dgment , and theref ore that Wife is presumed to have receive d timely notice of t he judgment, W i fe failed to preserve the right to co mplain about the default judg ment via restricted appeal by failing to file a timely motion for new trial. See T ex. R. Civ. P . 324(b)(1)
. Husband conflates the pre requi s i tes for filing a restricted appeal with the pre requi s ites for filing regular appea ls . The two are not the same. See , e.g. , Fid. & Guar. I ns. v. Drewery Const

r . Co. , 186 S.W.3d 571, 574 (Tex. 2006) (per curia m)
. For regular appeals, c ivil

- p rocedure Rule 324(b )(1 ) provides that the filing of a motion for new trial “ is a prerequisite to ” a complain t on appeal “ on which evidence must be heard [ ,] such as one of . . . failure to set aside a judgment by default. ” Id. Husband ap pears to argue t hat R u le 324 provides tha t e vidence must be heard in any appeal from a default judgment , including a restricted appeal
. But appellate

- pro cedure Rule 30 re quires the abse n ce of a timely

- f iled “ postjudgment m otion ” by t he nona ppearing party to invoke this court ’ s jurisd iction over a restricted appeal
. Tex. R. App. P. 30. A m otion for new trial is a postjudgment mot ion
. Camacho v. Vas q uez , No. 08

- 13

- 0 0019

- CV , 2013 WL 5593116, at *1 (Tex. App.

–– El Paso Oct. 9, 2013, no pet.) ( m em. op.). T hus, Husband ’ s a rgument “ is cont rary to the plain language of Rule 3 0
. ” Haddix v
. Am. Hom e Assurance , No. 12

- 05

- 00205

- CV, 2005 WL 1643288, at *1 (Tex. App.

–– Tyler July 1 3, 2 005, pet. denied) (per curiam) (mem. op); Pet co Animal Supplies, I n c. v. Schuster

, 144 S .W.3d 554, 559 n.4 (Tex. App.

–– Austin 2004, no pet .)
.4

Wife ’ s sufficiency arguments can be determined from the face of the re cord , Petco , 144 S.W.3d at 559 n.4 ; thus, he r argument s are not the type on which “ evidence must be heard , ” Tex. R . Civ. P. 324(b)( 1 ). To hold that R ule 324 requires a defaulting party to fi le a timely motion for n ew tri al a s a prerequisite to a restricte d appeal

“ would preclude all restricted appe als. ” Petco , 144 S.W .3d at 559 n.4. We therefor e decline to hold th a t Wife failed to preserve her right to bring a restrict ed appeal of the

no - answ er default judgment.

E rror on the Face of the Record In a singl e issue, Wife contends tha t the face of the rec ord shows that the trial
court reversibly erred , first by signing a purported agreed judgment when no evidence shows t hat the par ties agreed to the j udgment ’ s terms 1 a n d , secon d, by renderin g a property d ivisi o n a nd making conservatorship, possession, a nd child

- suppor t rulings based on l eg ally insufficient or factually i n sufficient evidence. We address her seco nd argument first
. Standard of Revie w W e review a trial cour t ’s property

- d ivision, cons ervatorship , p o ssession , and child

- support rulings for an abuse of discretion. See Worford v. Stamper , 801 S. W.2d 108, 109 (Te x . 19 90) (per curiam) ( child support); Beg v . S h akeel , No. 01

- 19

- 00765

- CV ,
1 Husband acknowledges that “ other than the name of the document, nothing else shows that it is an agree d final decree ” and that he “ does not take the p osition on app eal that this was an agreed judgme nt. ” He characteriz es the judgment ’ s title as a “ mi snomer. ”5

202 0 WL 7502491, at *9 (Tex . App.

–– Houston [1s t Dist.] Dec. 22, 2020 , no pet.) ( mem. op.) ( exclusive right to de signate primary residence ); Hamilton v. Hamilton , No. 02

- 19

- 0021 1

- CV , 2020 WL 6498528, at * 6 (Tex. App.

–– Fort Worth Nov. 5, 2020, n o pet.) (mem. op .) (property division); K.T. v. M.T. , No. 02

- 14

- 00044

- CV, 2015 WL 4910097, at *3 (Tex. App.

— Fort Worth Aug. 1 3, 2015, no pet.) (mem. op.) (possession)
. A trial court abuses its d iscretion if it acts arbitrarily or unreasonably or does not analy ze or apply the law properly. Ilif f v. Iliff , 339 S.W.3d 74, 78 (Tex. 2011)
. Whether the evidence supporting such ruli ngs is legally and factually sufficient is relevant in deciding wheth e r the trial court abused its discretion. In re T.D.C
. , 91 S.W.3d 865, 872 (Tex. App.

— Fort Worth 2002, pet. denied) (op. on reh’g )
. To determine whether the trial court abused its discreti on because the evide nce is insufficient to support its decision, w e consider whether the trial court (1) had

su fficient evidence upon which to exercise its dis cretion and (2) erred in its exercise of that discretion. Heap

- Welch v. Welch , No. 05

- 19

- 0 1260

- CV, 20 20 WL 6304 992, at *2 (Tex. App.

— Dallas Oct. 28, 2020, no pet. ) (mem. op.). I n a restricted appeal, we m a y only consider evidence that was included in the appellate record and that was before the trial court at the time of the dismissal. Gen. Elec. Co. v. Falcon Ridge Apartments , 811 S.W.2d 9 42, 944 (Tex. 1991); M c Coy v. M cCoy , No. 02

- 17

- 00275

- CV, 2018 WL 5 9 93547, at *2 (Tex. App.

–– Fort Worth Nov. 15, 2018, n o pet.) (mem. op.)
.6

Property D ivi sion In a divorce suit , “the petition may not be taken as confessed if the respondent does not file an answer.” Tex. Fam. Cod e A nn . § 6.701. Thus, i f the respondent in a divorce case fails to answer or appear, the petitioner must present evidence to support the m aterial all egations i n the petition. Heap

- Welch , 2020 WL 6304992, at *2; Watson v. Watson , 286 S.W.3d 519, 523 (Tex. A pp. — Fort Worth 2009, no pet.) ( “ Technicall y , there can be no default judgment in a divorce action. ” ). Accordingly, a default divorce judgment is subject to evidentiary attack on appeal. Heap

- Welch , 2020 WL 6304992, at *2. Evidence is legally insufficie n t to support a decree ’s property divis ion w h en no evidence of the divided property ’s value is adduced. E. g. , id. ; Watson , 286 S.W.3d at 524

– 25 ; Wilson v. Wil

son , 13 2 S.W.3d 533, 537

– 38 (Tex. App.

–– H o uston [1s t D i s t. ] 2004, pet. denied) ; O ’

Neal v. O ’ Neal , 69 S.W.3d 347 , 34 8

– 50 (Tex. App.

–– Eastland 2 0 02, no pet .). Husband ’ s testimony spans four pages. He testified that the proposed decree disposed of all the parties ’ assets and liabilit ies and that he b elieved it effected a fair and ju st d ivision of the ma r ital estate. T h e d ecree does not ascribe any value to the property d ivided , either individually or as a whole , and no other document filed in the record indicates the value of any part of the marital estate
. Accordingly, we hold that there is no evidenc e in the record to support the trial court ’ s property division and that without sufficient evidence to make such a decision , the tr ial court abused its7

discr etion in its property

- d ivision ruling
. See Heap

- Welch , 2020 WL 6304992, at *2; W atson , 286 S.W.3d at 5 2 4

– 2 5; Wilson , 132 S. W.3d at 537

– 38; O ’ Neal , 69 S. W.3d at 34 8

– 50. Parenting Provisions The record co nsists of two pages of Husband ’ s t e stimony regarding the decree ’ s child

- related provisions: he g ave the child ’ s name and ag e ; state d that she was livin g wi th h im at the time ; asked for $100 per month in child support

–– which according to his a ttorney was “ significantly less than the stat utory guideline amount of [Wife ’ s] income, wh ich would be roughly $600 per month , ” and which h e agreed was in the child ’ s be st i nterest ; requ e sted to be named the “ primary join t managing

cons ervator ” ; and stated t hat standard visi tation was in the chil d ’ s best interest. T h e decree recites that W

i fe ’ s monthly net resour ces were $3,800 2 and that Husband ’ s were $4,500. It al so a cknowledges

–– without supporting findings

–– that the month ly chi ld support amount deviates from the percentage guidelines
. See Tex. Fam. Code Ann. § 154.122 ( setting fort h a rebuttable presumption t hat ordering child suppor t according to the guideline s i s i n a child ’ s best interest), § 154.123 ( allowing trial court to dev iate from g uid elines and mandating that trial court consider evidence of “ all relevant factors, including ” seventeen listed items, such as the pare nts ’ abil i ty to contri bute to the child ’ s s uppor t, “ any financial resources available for the support of

2 The decree states elsew here that Wife was une mploy ed.8

the child , ” whether a par ty has managing cons ervatorship or physical custody of another child, and the cost o f travel for a party to exercise possession and acc e ss ) , § 154.124 (allowing part ies to vary from guidelines by written agreement if the court determines that the agreement is in the child ’ s be st int erest)
. As with the property d ivision, the parts of th e decree related to conservatorship and possessi on of t h e child , and to the parties ’ rel ation ship with the child and each other , are supported only by Husband ’ s wholly con c lusory testimony
. The trial cour t heard no evidence from which it could determine the chil d ’ s be st interest
. S ee H o lley v. A dam s , 544 S.W .2d 36 7, 371

– 72 (Tex. 1976) ( set t ing forth nonexc lusive facto rs trial court may consider in determining child ’ s best interest) ; In re T.M. , No. 02

- 19

- 00329

- CV, 2020 WL 523272, at *5 (Tex. App.

–– Fort Worth Feb. 3, 2020, no pet. ) (mem. op.) ( applying Holley factors to conservatorship de term ination )
. Thus, the trial court

c ould not have properly ex er cised its discre tion in making the child

- related r ulings in the decree. 3 See Sm ith v. Hickman , No. 04

- 19

- 00182

- CV , 2020 WL 1442663, at *2 (Tex. App.

– - San Antonio Mar. 25, 2020, no p et.) (mem . op .); Garcia v. Benavides , No. 04

- 19

- 00451

- CV , 2020 WL 214758, at * 2 (Tex. App.

–– San Antonio Jan. 15, 2020, no

3 Altho u gh the decree recites that its provisions “ relating to the rights and duties of the parties with relation to the child, possessio n of and access to the child, child s upport, and optimizing the development o f a close and continui ng relationship between eac h party and the child constitute the parties ’ agreed pa r e nting plan , ” Hu sband did not testif

y that Wife agreed to the parenting pl an ; even if he had, H us band did not provide sufficient evidence for the tri al court to m ake a best

- interest determination
. See Tex. Fam. Co de Ann. § 153. 007 ( b) (allowing court to render an order in ac cor dance with an agreed parenting plan “ [i]f the court finds that the agreed parenting plan is in the child ’ s best interest ” ).9

pet.) (mem. op.) ; Vasquez v. Vas quez , 292 S.W.3d 80, 84

– 85 (T ex. App.

–– Houston [14 th Dist.] 2007, no pet. ); Miles v. Pea cock , 229 S. W.3d 384, 3 91 ( T ex. App.

–– Houston [1 st D ist.] 2007 , n o pet.). We hold that the s e part s of the decree comprising t he

“ agreed parenting plan ” show error on t he face of the record. A dditionally, a lthough our determination t hat the trial cou rt erred in its property divi sion requ

ires us to remand the trial court ’ s child

- su pport award as well as its property d ivision, see

, e.g. , Wilson , 132 S.W.3d at 539 , we als o note that evidentiary

error ex ists on the face of the record as to the child suppo rt . T he decree rec ites that Wi fe ’ s net monthly reso urces were $3,8 00, but Husband provided no evidence to suppo rt t hat am ount

–– no thing concerning her employment, wag es, s ala ry, or other income. 4 See Gonzalez v. Gonzalez , 331 S.W.3d 864, 867

– 68 ( Tex. Ap p. –– Dallas 2011 ,
n o pet.); Mile s , 2 29 S. W.3d at 390; Newberry v. Bohn

- Newberry , 146 S.W.3d 23 3, 236 (Tex. App.

–– H o usto n [14 th D ist.] 2004, no p et. ) ( substituted op. ) ( “ There mu st be some evidence of a substantive and probative character of net resources in o rder for this duty [to calcul ate net resources for child

- support calculation ] to be dischar ged
. ” ). He likewise addu ced no evidence that would support the findings ne cessary for the trial court to deviate from the child

- support guidelines. See Tex. Fam. C ode

4 See id
. § 154.068(a) (pro vidi ng presu mption, if no evidence is adduced regarding part

y ’ s net resources, that party earns then

- current federa l m inimum wage at forty hou rs per week). T h e Attorney General ’ s 2019 tax chart indicates that t he mon thly average inco me at federal minimum wage would b e $1,256.67. Office of the Attorney Gen
. , https ://csapps.oag.texas.gov/system/files/2018

- 12/2019taxcharts .pdf (last visited May 2 4, 2021 )
.10

Ann. § 154. 123 ; Steele v. Ste ele , No. 0 3

- 07

- 00011

- CV, 2009 WL 2567911 , at *4 (Tex. App.

–– Austin Aug. 19, 2009, n o pet.) (mem. op.). Accordingly, the trial court abused i ts discretion in awarding child support. Having determined that Wife has shown err or i n the trial co urt ’ s judgm ent on the face of the record , 5 we sustain her issue
. C onclusi on At Wife ’ s request, w e affirm the part of the trial court ’ s judgment t ha t gra nts the divorce , but havin g sustained Wife ’ s is sue , we reverse the remainder of the j udgment and remand the case f or a new trial.
/s/ B onnie Sudderth

Bonnie Sudderth Chief Jus tice Deli vered: May 27, 2021

5 Be cau se o f our dis position, we nee d not address W ife ’ s argument t hat additional error exists on the face of t he record because nothin g shows that she actually agre ed to the judgment
. See T ex. R. App. P. 47.1.