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In re I.B.

Court of Appeals of Texas, Fifth District, Dallas

November 12, 2019

IN THE INTEREST OF I.B., A CHILD

          On Appeal from the 255th Judicial District Court Dallas County, Texas Trial Court Cause No. DF-17-23294

          Before Justices Myers, Osborne, and Nowell

          MEMORANDUM OPINION

          LESLIE OSBORNE, JUSTICE

         The trial court rendered a final decree of divorce between Mother and Father, the parents of I.B., and denied Father's motion for new trial. Father appeals, challenging the trial court's division of property and award of child support. We affirm the trial court's judgment in part, reverse in part, and remand for further proceedings on the amount of child support to be paid by Father.

         Background

         Mother and Father were married in 2013. They ceased to live together as spouses shortly after I.B.'s birth in early 2017. Mother filed her original petition for divorce on November 22, 2017.

         Father filed a waiver of service. Father also signed and filed Mother's November 6, 2017 settlement proposal letter. Mother's settlement offer, however, expired on November 10, 2017, and Father's signature is dated November 30, 2017.

         On February 28, 2018, Mother filed a "Motion to Sign Final Decree of Divorce," requesting that the trial court render a final decree of divorce in accordance with the parties' November 30 settlement agreement. The motion recites that Father's counsel had not responded to Mother's request to execute the proposed decree and had not informed Mother's counsel of any objections to the proposed decree. The record does not reflect a hearing or an order on this motion. Instead, the next items in the clerk's record are Mother's amended petition, her motion to compel discovery, and her motion for mediation. There are no orders on these motions.

         Although an attorney filed an entry of appearance on Father's behalf in February 2018, Father never filed an answer or responded to any motion.

         The case proceeded to trial before the court on August 9, 2018. Father appeared late, after Mother's testimony had begun. He requested a recess until his attorney arrived, which the trial court granted. Mother then completed her testimony. When Father's counsel began Mother's cross-examination, however, Mother's counsel objected that "He's not entitled to ask any questions of my witness on the judgment nihil dicit." The trial court sustained the objection, and no further testimony was taken.

         The trial court rendered judgment on Mother's requested relief, making findings on the best interest of the child and a just and right division of the property. The trial court rendered a final decree of divorce on August 22, 2018. The decree includes a provision that Father must pay Mother child support of $1, 666.36 per month. The decree also recites:

Respondent, [Father], waived issuance and service of citation by waiver duly filed, made a general appearance in the case, appeared in person and through his counsel of record, Bilal Khaleeq, however, the Court rendered Judgment Nihil Dicit against Respondent for failing to file an answer or any other pleading putting the merits of Petitioner's case at issue.

         Father filed a motion for new trial, arguing that the evidence was legally and factually insufficient to support the trial court's judgment. He also argued that the trial court erred by ruling that he could not testify at trial. At the hearing on the motion, Father testified that he withdrew his consent to the November 6 settlement letter because he disagreed with its provisions about his visitation with I.B.[1] Although the record is not entirely clear, it appears that Father had changed his mind by the time of the hearing and sought a new divorce decree incorporating the settlement agreement's terms. Father also testified that his annual net income was $18, 000 to $19, 000, not $100, 000 as Mother had testified at trial, but he did not offer any supporting evidence. As he had at trial, Mother's counsel referred to "bank statements that show that you made over $100, 000 in the course of six months," but Father testified the figure was incorrect. The bank statements were not introduced into evidence either at trial or at the hearing on the motion for new trial. At the conclusion of the hearing, the trial court denied the motion for new trial, explaining that Father did not sign the settlement letter before the offer in it expired, and the court "did not render judgment on this agreement." Accordingly, the trial court signed its "Order Denying Motion for New Trial" on October 15, 2018. This appeal followed.

         Standards ...


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