Court of Appeals of Texas, Fourth District, San Antonio
the 38th Judicial District Court, Uvalde County, Texas Trial
Court No. 2018-09-32349-CV Honorable Ron Carr, Judge
Sitting: Sandee Bryan Marion, Chief Justice Patricia O.
Alvarez, Justice Beth Watkins, Justice
BRYAN MARION, CHIEF JUSTICE
IN PART, AFFIRMED IN PART, AND REMANDED
Ceila Beatriz Garcia ("Garcia") appeals from a
default decree of divorce. Because we conclude the trial
court's determinations regarding conservatorship,
possession and access, and child support are not supported by
the pleadings or the evidence, we reverse the judgment in
part as to those issues and remand to the trial court for
proceedings consistent with this opinion. Because Garcia does
not challenge the default decree of divorce to the extent it
grants the parties a divorce and makes a division of property
and debts, we affirm the judgment in all other respects.
and appellee Michael Anthony Benavides
("Benavides") were married in 2017 and have one
child together. Benavides filed a pro se petition for divorce
in Uvalde County in September 2018. The clerk's record
contains a sheriff's return of citation reflecting that
Garcia was personally served with the original petition on
September 10, 2018. The record, however, does not reflect
that Garcia filed an answer. On March 22, 2019, after
conducting an evidentiary hearing at which Benavides was
represented by counsel, the trial court entered a default
decree of divorce, stating that Garcia, "although duly
and properly cited, did not appear and wholly made
default." The default decree names Benavides and Garcia
joint managing conservators of their child with Benavides
having the exclusive right to designate the child's
primary residence. The default decree also orders Garcia to
pay Benavides child support in the amount of $400 per month.
Garcia timely filed a motion for new trial, she does not
challenge the trial court's order denying it. Rather, in
three issues, Garcia argues the trial court abused its
discretion because: (1) the default decree grants relief not
pleaded for in the original petition, (2) the evidence is
insufficient to support the determination of conservatorship
and possession and access, and (3) the evidence is
insufficient to support the child support award.
initial matter, Benavides argues Garcia waived her first and
third issues by failing to raise them in her motion for new
trial. A default divorce decree must be supported by the
pleadings. Lynch v. Lynch, 540 S.W.3d 107, 134-35
(Tex. App.-Houston [1st Dist.] 2017, pet. denied) (citing
Tex.R.Civ.P. 301; Stoner v. Thompson, 578 S.W.2d
679, 682 (Tex. 1979)). "'This rule is a specific
application of the more general principle that a party may
not be granted relief in the absence of pleadings to support
that relief, unless the request for relief is tried by
consent-a situation that cannot occur in the context of a
default judgment.'" Id. (quoting In re
Marriage of Day, 497 S.W.3d 87, 90 (Tex. App.-Houston
[14th Dist.] 2016, pet. denied)). Therefore, a challenge to
the sufficiency of the pleadings may be raised for the first
time on appeal. See Day, 497 S.W.3d at 90.
although no evidence is generally required to support a
default judgment, the general rule is limited in the divorce
context by section 6.701 of the Family Code, which provides:
"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; accord Agraz v.
Carnley, 143 S.W.3d 547, 552 (Tex. App.-Dallas 2004, no
pet.); Osteen v. Osteen, 38 S.W.3d 809, 814 (Tex.
App.-Houston [14th Dist.] 2001, no pet.). In a divorce case,
a petitioner is required to prove up the material allegations
in the petition in order to obtain a default divorce, and a
respondent may raise evidentiary challenges for the first
time on appeal. Agraz, 143 S.W.3d at 552;
Osteen, 38 S.W.3d at 814.
because Garcia's challenges to the default decree may be
raised for the first time on appeal, we conclude she has not
waived them and turn to the merits.
Standard of ...