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Diaz Maldonado v. Medrano

Court of Appeals of Texas, Thirteenth District, Corpus Christi-Edinburg

August 22, 2019

SILVIA RUBI DIAZ MALDONADO, Appellant,
v.
GREGORIO MEDRANO, Appellee.

          On appeal from the 332nd District Court of Hidalgo County, Texas.

          Before Chief Justice Contreras and Justices Longoria and Hinojosa

          MEMORANDUM OPINION

          DORI CONTRERAS Chief Justice

         Appellant 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.[1]We affirm.

         I. Background

         On 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 answer.

         Medrano 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.

         On 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.

         The 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.

         II. New Trial

         As we 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.

         We note 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, no pet.).

         This is 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).

         Here, 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; ...


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