Court of Appeals of Texas, Thirteenth District, Corpus Christi-Edinburg
appeal from the 332nd District Court of Hidalgo County,
Chief Justice Contreras and Justices Longoria and Hinojosa
CONTRERAS Chief Justice
Silvia Rubi Diaz Maldonado appeals pro se from a default
divorce decree terminating her marriage to appellee Gregorio
Medrano. By what we construe as two issues, Maldonado argues
that (1) she is entitled to a new trial because of newly
discovered evidence, and (2) the trial court erred in its
division of the parties' property.We affirm.
March 20, 2018, Medrano filed for divorce on the basis of
insupportability. See Tex. Fam. Code Ann. §
6.001. According to his petition, the parties married in
November of 2007, did not have any children during their
marriage, and stopped living together around March of 2015.
Although duly and properly cited, Maldonado did not file an
filed a motion for entry of a default divorce decree, and the
trial court held a hearing on the motion, but Maldonado did
not appear. At the hearing, Medrano testified that the couple
acquired "household goods, furniture and
electronics" during their marriage. Medrano stated he
was no longer in possession of these goods because Maldonado
sold them without his consent, and he estimated the value of
these items to be between $50, 000 and $53, 000. Medrano
explained that their marriage experienced troubles and that
he began to live with friends to avoid contact with
Maldonado. When Medrano returned to the home he shared with
Maldonado, "everything was empty. Everything was
gone." According to Medrano, prior to the parties'
marriage, he inherited the home the couple lived in and no
real property was purchased during the marriage. Medrano
testified that the couple purchased a 2005 Chevy Colorado and
a 2014 Nissan Sentra during the marriage and that the 2005
Chevy Colorado was also "property that [Maldonado]
wasted without [Medrano's] consent . . . ." Medrano
has earned retirement benefits from his job since 2003.
August 20, 2018, the trial court entered a divorce decree
awarding Medrano: (1) eighty percent of all of his retirement
funds earned between November 2007 and August 13, 2018; (2)
the 2005 Chevrolet Colorado; (3) the 2014 Nissan Sentra; and
(4) a judgment of $26, 500 for half of the value of the
community assets disposed of by Maldonado. The trial court
awarded Maldonado the remaining twenty percent of
Medrano's retirement funds. Further, the trial court
confirmed that the home where the couple had lived was
Medrano's separate property.
trial court did not issue findings of fact and conclusions of
law. Although she learned of the judgment within the time for
filing post-judgment motions, Maldonado did not move for a
new trial or otherwise seek to set aside the judgment in the
trial court. Instead, on September 18, 2019, she timely filed
a notice of appeal.
understand it, Maldonado argues by her first issue that she
is entitled to a new trial. In support of her argument, she
cites extrinsic documents she attached to her notice of
appeal and her appellate brief.
that pro se litigants are held to the same standards as
licensed attorneys and must comply with all applicable rules
of procedure. Serrano v. Pellicano Park, L.L.C., 441
S.W.3d 517, 520 (Tex. App.-El Paso 2014, pet. dism'd
w.o.j.); see Pena v. McDowell, 201 S.W.3d 665, 667
(Tex. 2006) (per curiam). A pro se litigant is required to
properly present her case on appeal, just or she is required
to properly present her case to the trial court. Valadez
v. Avitia, 238 S.W.3d 843, 845 (Tex. App.-El Paso 2007,
a direct appeal from the trial court's default judgment.
A motion for new trial affords a defendant his or her first
opportunity to attack a default judgment. See Tex.
R. Civ. P. 320; PNS Stores, Inc. v. Rivera, 379
S.W.3d 267, 271-72 (Tex. 2012); L.M. Healthcare, Inc. v.
Childs, 929 S.W.2d 442, 443 (Tex. 1996) (per curiam)
(op. on reh'g); see also Primate Constr., Inc. v.
Silver, 884 S.W.2d 151, 152 (Tex. 1994) (per curiam)
(restricted appeal); Min v. Avila, 991 S.W.2d 495,
499-500 (Tex. App.-Houston [1st Dist.] 1999, no pet.) (bill
of review); Barrett v. Westover Park Ass'n,
Inc., No. 01-10-01112-CV, 2012 WL 682342, at *2 (Tex.
App.-Houston [1st Dist.] Mar. 1, 2012, no pet.) (mem. op.).
When the attack on a default judgment relies on extrinsic
evidence, such as here, a motion for new trial is a
prerequisite to complaining on appeal that the default
judgment should be set aside. See Tex. R. App. P.
33.1; Tex.R.Civ.P. 324(b); Massey v. Columbus State
Bank, 35 S.W.3d 697, 699 (Tex. App.-Houston [1st Dist.]
2001, pet. denied) ("Complaints regarding the trial
court's failure to set aside a default judgment must be
raised in a motion for new trial."); Puri v.
Mansukhani, 973 S.W.2d 701, 715 (Tex. App.- Houston
[14th Dist.] 1998, no pet.) (explaining that a motion for new
trial or to set aside default judgment is a complaint on
which evidence must be heard); see also In re Marriage of
Collins & Tipton, No. 07-06-00314-CV, 2008 WL
3930559, at *2 (Tex. App.- Amarillo Aug. 27, 2008, no pet.)
(mem. op.) (concluding that, because the appellant failed to
move for new trial, he failed to preserve complaint on appeal
that the trial court erred by entering a default judgment).
This is so the trial court has the opportunity to consider
and weigh the evidence. Ginn v. Forrester, 282
S.W.3d 430, 432 (Tex. 2009) (per curiam); see also Harris
v. Burks, No. 01-06-00128-CV, 2007 WL 1776048, at *2
(Tex. App.-Houston [1st Dist.] June 21, 2007, no pet.) (mem.
op.) (explaining that complaints regarding the trial
court's failure to set aside judgment must be raised in
motion for new trial because the trial court must hear
evidence to make a determination of whether requirements for
a new trial have been met).
Maldonado did not file a motion for a new trial, and her
attack on the judgment relies on extrinsic evidence.
Accordingly, Maldonado failed to preserve this issue for our
review. See Tex. R. App. P. 33.1; ...