Court of Appeals of Texas, Fourth District, San Antonio
the 63rd Judicial District Court, Val Verde County, Texas
Trial Court No. 32, 952 Honorable Enrique Fernandez, Judge
Sitting: Patricia O. Alvarez, Justice, Luz Elena D. Chapa,
Justice, Irene Rios, Justice
Elena D. Chapa, Justice
Chapa files this restricted appeal from a default divorce
decree, urging that the trial court abused its discretion in
dividing the community estate. We agree and reverse and
remand for a new trial as to that issue.
Hector Chapa filed a petition for divorce and obtained
service on Elvia Chapa; however, Elvia did not file an
answer. After an evidentiary hearing at which Hector was the
only witness, the trial court rendered its decree. The
decree, signed February 24, 2017, granted the divorce on the
ground of insupportability and divided the marital estate.
Elvia filed a notice of restricted appeal on May 30, 2017.
prevail on a restricted appeal, appellant must demonstrate:
(1) she filed the notice of restricted appeal within six
months of the date of the judgment or order; (2) she was a
party to the suit; (3) she did not participate in the hearing
that resulted in the judgment complained of and did not file
a timely post-judgment motion or request for findings of fact
and conclusions of law; and (4) error is apparent from the
face of the record. Tex.R.App.P. 26.1(c), 30; Alexander
v. Lynda's Boutique, 134 S.W.3d 845, 848 (Tex.
2004). It is undisputed that the first three elements are met
in this case, and only the fourth element is in issue.
restricted appeal affords appellant the same scope of review
as an ordinary appeal, that is, a review of the entire case,
including insufficiency claims. See Norman Commc'ns
v. Tex. Eastman Co., 955 S.W.2d 269, 270 (Tex. 1997)
(per curiam). The only restriction on the scope of the
restricted appeal is that the error must appear on the face
of the record. Id. For purposes of a restricted
appeal, the face of the record consists of all the papers on
file in the appeal, including the reporter's record.
Id.; In re E.M.V., 312 S.W.3d 288, 290
(Tex. App.-Dallas 2010, no pet.); O'Neal v.
O'Neal, 69 S.W.3d 347, 348 (Tex. App.-Eastland 2002,
no pet.). Elvia contends there is error on the face of the
record because there is insufficient evidence to support
division of the marital estate.
Texas Family Code provides that "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 (West 2006). Therefore, when a respondent defaults, the
petitioner must present evidence to support the material
allegations in the petition, including evidence to support a
"just and right" division of the community estate.
See id. § 7.001; Sandone v. Miller
Sandone, 116 S.W.3d 204, 208 (Tex. App.- El Paso 2003,
review a trial court's division of property for abuse of
discretion. Murfff v. Murff, 615 S.W.2d 696, 698
(Tex. 1981); Garza v. Garza, 217 S.W.3d 538, 548
(Tex. App.-San Antonio 2006, no pet.). In family law cases
the abuse of discretion standard of review overlaps with the
traditional sufficiency standards of review. Garza,
217 S.W.3d at 549. In reviewing whether the trial court
abused its discretion because the evidence is legally or
factually insufficient, we determine whether (1) the trial
court had sufficient evidence upon which to exercise its
discretion, and (2) the trial court erred in its application
of that discretion. Id.
contends the trial court abused its discretion because there
was insufficient evidence upon which to base a just and right
division of the marital estate. We agree. To make a just and
right division, the trial court must have had probative
evidence about "the size of the community pie."
Sandone, 116 S.W.3d at 207-08. The only evidence
presented to the trial court was Hector's testimony that
he was asking the court to divide the property and debts in
the manner set forth in the draft decree. In his questioning,
counsel went through the list of real property, personal
property, accounts, and debts in the draft decree, and asked
Hector to agree that the item would be awarded to either
Hector or Elvia. Hector also stated he had agreed to pay
$500.00 a month in contractual alimony. However, no evidence
regarding the value of any of the accounts, properties,
vehicles, or debts was presented. At the conclusion of the
hearing, the trial court ruled it would "divide the
property as contained in the final decree of divorce."
record does not contain any evidence of the value of the
community estate or of any component parts of the estate.
There is therefore no evidence upon which the trial court
could have concluded the division of the estate in the decree
is just and right. See Santillan v. Campos, No.
04-08-00904-CV, 2009 WL 3464867, at *3 (Tex. App.-San Antonio
Oct. 28, 2009, no pet.) (mem. op.); Sandone, 116
S.W.3d at 208. This constitutes an abuse of discretion that
is error apparent on the face of the record. See In re
E.M.V., 312 S.W.3d at 291 (holding trial court abused
its discretion because it had insufficient evidence to divide
property fairly and equitably, and error was apparent from
face of record); Wilson v. Wilson, 132 S.W.3d 533,
537-38 (Tex. App.- Houston [1st Dist.] 2004, pet denied)
(same); O'Neal v. O'Neal, 69 S.W.3d at 350
therefore reverse the part of the Final Decree of Divorce
that divides the marital estate and remand the case to the
trial court for a new division. See Jacobs v.
Jacobs, 687 S.W.2d 731, 733 (Tex. 1985) (when there is
reversible error affecting the just and right division of the
community estate, court of appeals must remand the entire