In the

Court of Appeals

Second Appellate District of Texas

at Fort Worth

___________________________

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., Appellee
2

MEMORANDUM OPINION

Wife B.K. filed this restricted appeal from the trial court’s no-answer default 

judgment against her in the underlying divorce proceeding. Although the record 

shows that Wife was properly served and received presumptive notice of the 

judgment’s entry, we nevertheless reverse and remand because Husband T.K. did not 

present sufficient evidence to support the trial court’s property division or the orders 

concerning the parties’ child.

Restricted Appeal Requirements

To prevail in this restricted appeal, Wife must show that (1) she timely filed a

notice 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 either a postjudgment motion, request for findings of fact and conclusions 

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 record. See Tex. R. App. P. 26.1(c), 30; Alexander v. 

Lynda’s Boutique, 134 S.W.3d 845, 848 (Tex. 2004); In re S.W., 614 S.W.3d 311, 313–14 

(Tex. App.—Fort Worth 2020, no pet.) (mem. op.). The first three elements are 

necessary to invoke our restricted-appeal jurisdiction, but the fourth is not. Ex parte 

E.H., 602 S.W.3d 486, 496 (Tex. 2020).

Preservation

Husband does not challenge that Wife met the three jurisdictional requirements 

to maintain a restricted appeal. Instead, he contends that because the record shows 
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that the trial court properly notified Wife of the judgment, and therefore that Wife is 

presumed to have received timely notice of the judgment, Wife failed to preserve the 

right to complain about the default judgment via restricted appeal by failing to file a 

timely motion for new trial. See Tex. R. Civ. P. 324(b)(1).

Husband conflates the prerequisites for filing a restricted appeal with the 

prerequisites for filing regular appeals. The two are not the same. See, e.g., Fid. & 

Guar. Ins. v. Drewery Constr. Co., 186 S.W.3d 571, 574 (Tex. 2006) (per curiam). For 

regular appeals, civil-procedure Rule 324(b)(1) provides that the filing of a motion for 

new trial “is a prerequisite to” a complaint on appeal “on which evidence must be 

heard[,] such as one of . . . failure to set aside a judgment by default.” Id. Husband 

appears to argue that Rule 324 provides that evidence must be heard in any appeal

from a default judgment, including a restricted appeal. But appellate-procedure Rule 

30 requires the absence of a timely-filed “postjudgment motion” by the nonappearing 

party to invoke this court’s jurisdiction over a restricted appeal. Tex. R. App. P. 30. 

A motion for new trial is a postjudgment motion. Camacho v. Vasquez, No. 08-13-

00019-CV, 2013 WL 5593116, at *1 (Tex. App.––El Paso Oct. 9, 2013, no pet.) 

(mem. op.). Thus, Husband’s argument “is contrary to the plain language of Rule 30.”

Haddix v. Am. Home Assurance, No. 12-05-00205-CV, 2005 WL 1643288, at *1 (Tex. 

App.––Tyler July 13, 2005, pet. denied) (per curiam) (mem. op); Petco Animal Supplies, 

Inc. 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 record,

Petco, 144 S.W.3d at 559 n.4; thus, her arguments are not the type on which “evidence 

must be heard,” Tex. R. Civ. P. 324(b)(1). To hold that Rule 324 requires a defaulting

party to file a timely motion for new trial as a prerequisite to a restricted appeal

“would preclude all restricted appeals.” Petco, 144 S.W.3d at 559 n.4. We therefore 

decline to hold that Wife failed to preserve her right to bring a restricted appeal of the 

no-answer default judgment.

Error on the Face of the Record

In a single issue, Wife contends that the face of the record shows that the trial 

court reversibly erred, first by signing a purported agreed judgment when no evidence 

shows that the parties agreed to the judgment’s terms1and, second, by rendering a 

property division and making conservatorship, possession, and child-support rulings

based on legally insufficient or factually insufficient evidence. We address her second 

argument first.

Standard of Review

We review a trial court’s property-division, conservatorship, possession, and 

child-support rulings for an abuse of discretion. See Worford v. Stamper, 801 S.W.2d 

108, 109 (Tex. 1990) (per curiam) (child support); Beg v. Shakeel, No. 01-19-00765-CV, 

1Husband acknowledges that “other than the name of the document, nothing 

else shows that it is an agreed final decree” and that he “does not take the position on 

appeal that this was an agreed judgment.” He characterizes the judgment’s title as a 

“misnomer.” 
5

2020 WL 7502491, at *9 (Tex. App.––Houston [1st Dist.] Dec. 22, 2020, no pet.) 

(mem. op.) (exclusive right to designate primary residence); Hamilton v. Hamilton, No.

02-19-00211-CV, 2020 WL 6498528, at *6 (Tex. App.––Fort Worth Nov. 5, 2020, no 

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. 13, 2015, no pet.) (mem. op.)

(possession). A trial court abuses its discretion if it acts arbitrarily or unreasonably or 

does not analyze or apply the law properly. Iliff v. Iliff, 339 S.W.3d 74, 78 (Tex. 2011). 

Whether the evidence supporting such rulings is legally and factually sufficient is 

relevant in deciding whether 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 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. Heap-Welch v. Welch, No. 05-19-01260-CV, 2020 WL 6304992, at *2 

(Tex. App.—Dallas Oct. 28, 2020, no pet.) (mem. op.). 

In a restricted appeal, we may 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 942, 944 (Tex. 1991); McCoy v. McCoy, 

No. 02-17-00275-CV, 2018 WL 5993547, at *2 (Tex. App.––Fort Worth Nov. 15, 

2018, no pet.) (mem. op.).
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Property Division

In a divorce suit, “the petition may not be taken as confessed if the respondent 

does not file an answer.” Tex. Fam. Code Ann. § 6.701. Thus, 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. Heap-Welch, 2020 WL 6304992, at *2; Watson v. 

Watson, 286 S.W.3d 519, 523 (Tex. App.—Fort Worth 2009, no pet.) (“Technically, 

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 insufficient to support a decree’s property division when no 

evidence of the divided property’s value is adduced. E.g., id.; Watson, 286 S.W.3d at 

524–25; Wilson v. Wilson, 132 S.W.3d 533, 537–38 (Tex. App.––Houston [1st Dist.] 

2004, pet. denied); O’Neal v. O’Neal, 69 S.W.3d 347, 348–50 (Tex. App.––Eastland 

2002, no pet.).

Husband’s testimony spans four pages. He testified that the proposed decree 

disposed of all the parties’ assets and liabilities and that he believed it effected a fair 

and just division of the marital estate. The decree does not ascribe any value to the 

property divided, 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 evidence in the record to support the trial court’s property division and 

that without sufficient evidence to make such a decision, the trial court abused its 
7

discretion in its property-division ruling. See Heap-Welch, 2020 WL 6304992, at *2; 

Watson, 286 S.W.3d at 524–25; Wilson, 132 S.W.3d at 537–38; O’Neal, 69 S.W.3d at 

348–50.

Parenting Provisions

The record consists of two pages of Husband’s testimony regarding the 

decree’s child-related provisions: he gave the child’s name and age; stated that she

was living with him at the time; asked for $100 per month in child support––which 

according to his attorney was “significantly less than the statutory guideline amount of 

[Wife’s] income, which would be roughly $600 per month,” and which he agreed was 

in the child’s best interest; requested to be named the “primary joint managing 

conservator”; and stated that standard visitation was in the child’s best interest. The 

decree recites that Wife’s monthly net resources were $3,8002and that Husband’s 

were $4,500. It also acknowledges––without supporting findings––that the monthly 

child support amount deviates from the percentage guidelines. See Tex. Fam. Code 

Ann. § 154.122 (setting forth a rebuttable presumption that ordering child support

according to the guidelines is in a child’s best interest), § 154.123 (allowing trial court 

to deviate from guidelines and mandating that trial court consider evidence of “all 

relevant factors, including” seventeen listed items, such as the parents’ ability to 

contribute to the child’s support, “any financial resources available for the support of 

2The decree states elsewhere that Wife was unemployed. 
8

the child,” whether a party has managing conservatorship or physical custody of 

another child, and the cost of travel for a party to exercise possession and access), 

§ 154.124 (allowing parties to vary from guidelines by written agreement if the court 

determines that the agreement is in the child’s best interest).

As with the property division, the parts of the decree related to conservatorship 

and possession of the child, and to the parties’ relationship with the child and each 

other, are supported only by Husband’s wholly conclusory testimony. The trial court 

heard no evidence from which it could determine the child’s best interest. See Holley v. 

Adams, 544 S.W.2d 367, 371–72 (Tex. 1976) (setting forth nonexclusive factors 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 determination). Thus, the trial court 

could not have properly exercised its discretion in making the child-related rulings in 

the decree.3 See Smith v. Hickman, No. 04-19-00182-CV, 2020 WL 1442663, at *2 

(Tex. App.–-San Antonio Mar. 25, 2020, no pet.) (mem. op.); Garcia v. Benavides, No.

04-19-00451-CV, 2020 WL 214758, at *2 (Tex. App.––San Antonio Jan. 15, 2020, no 

3Although the decree recites that its provisions “relating to the rights and duties 

of the parties with relation to the child, possession of and access to the child, child 

support, and optimizing the development of a close and continuing relationship 

between each party and the child constitute the parties’ agreed parenting plan,”

Husband did not testify that Wife agreed to the parenting plan; even if he had, 

Husband did not provide sufficient evidence for the trial court to make a best-interest 

determination. See Tex. Fam. Code Ann. § 153.007(b) (allowing court to render an 

order in accordance with an agreed parenting plan “[i]f the court finds that the agreed 

parenting plan is in the child’s best interest”).
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pet.) (mem. op.); Vasquez v. Vasquez, 292 S.W.3d 80, 84–85 (Tex. App.––Houston 

[14th Dist.] 2007, no pet.); Miles v. Peacock, 229 S.W.3d 384, 391 (Tex. App.––Houston 

[1st Dist.] 2007, no pet.). We hold that these parts of the decree comprising the 

“agreed parenting plan” show error on the face of the record.

Additionally, although our determination that the trial court erred in its 

property division requires us to remand the trial court’s child-support award as well as 

its property division, see, e.g., Wilson, 132 S.W.3d at 539, we also note that evidentiary 

error exists on the face of the record as to the child support. The decree recites that 

Wife’s net monthly resources were $3,800, but Husband provided no evidence to 

support that amount––nothing concerning her employment, wages, salary, or other 

income.4 See Gonzalez v. Gonzalez, 331 S.W.3d 864, 867–68 (Tex. App.––Dallas 2011, 

no pet.); Miles, 229 S.W.3d at 390; Newberry v. Bohn-Newberry, 146 S.W.3d 233, 236 

(Tex. App.––Houston [14th Dist.] 2004, no pet.) (substituted op.) (“There must be 

some evidence of a substantive and probative character of net resources in order for 

this duty [to calculate net resources for child-support calculation] to be discharged.”). 

He likewise adduced no evidence that would support the findings necessary for the 

trial court to deviate from the child-support guidelines. See Tex. Fam. Code 

4See id. § 154.068(a) (providing presumption, if no evidence is adduced 

regarding party’s net resources, that party earns then-current federal minimum wage at 

forty hours per week). The Attorney General’s 2019 tax chart indicates that the 

monthly average income at federal minimum wage would be $1,256.67. Office of the 

Attorney Gen., https://csapps.oag.texas.gov/system/files/2018-

12/2019taxcharts.pdf (last visited May 24, 2021).
10

Ann. § 154.123; Steele v. Steele, No. 03-07-00011-CV, 2009 WL 2567911, at *4 (Tex. 

App.––Austin Aug. 19, 2009, no pet.) (mem. op.). Accordingly, the trial court abused 

its discretion in awarding child support.

Having determined that Wife has shown error in the trial court’s judgment on 

the face of the record,

5 we sustain her issue.

Conclusion

At Wife’s request, we affirm the part of the trial court’s judgment that grants

the divorce, but having sustained Wife’s issue, we reverse the remainder of the 

judgment and remand the case for a new trial.

/s/ Bonnie Sudderth

Bonnie Sudderth

Chief Justice

Delivered: May 27, 2021

5Because of our disposition, we need not address Wife’s argument that 

additional error exists on the face of the record because nothing shows that she

actually agreed to the judgment. See Tex. R. App. P. 47.1.