IVAN FOSTER TUCKER, Appellant v. SHEILA RENNA TUCKER, Appellee

Affirm in part; Reverse and Remand in Part; Opinion Filed November 22, 2010.
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-09-01203-CV
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IVAN FOSTER TUCKER, Appellant
V.
SHEILA RENNA TUCKER, Appellee
.............................................................
On Appeal from the 416th Judicial District Court
Collin County, Texas
Trial Court Cause No. 416-52547-2009
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MEMORANDUM OPINION
Before Justices O'Neill,
Opinion By Justice O'Neill, Richter, and Lang-Miers
        Appellee Sheila Renna Tucker sued appellant Ivan Foster Tucker for divorce and for assault. Appellant failed to answer and the trial court entered a judgment of divorce, divided the community estate, and awarded appellee actual and exemplary damages for assault. In eight points of error, appellant generally contends (1) he was not properly served with citation, (2) the evidence is legally and factually insufficient to support the divorce and division of property, and (3) the evidence is legally and factually insufficient in the assault case. For the following reasons, we affirm the judgment granting appellee a divorce and the judgment finding appellant liable for assault. We reverse and remand the trial court's property division and assessment of damages.
        Appellee sued appellant for divorce and for damages for an assault for which appellant is currently in prison. After appellant failed to answer appellee's petition, the trial court conducted a divorce prove-up hearing and a hearing on unliquidated damages. It entered a divorce decree, divided the martial estate, and awarded appellee $250,000 in actual and exemplary damages for assault. Appellant appeals.
        We will first address appellant's second issue asserting he was not properly served. Texas Rule of Civil Procedure 107 provides that for personal service of a citation, the return of citation shall (1) be endorsed or attached to the citation, (2) state when the citation was served, (3) state the manner of service, and (4) be signed by the officer officially or by the authorized person. Tex. R. Civ. P. 107. In reviewing a default judgment, there are no presumptions of valid issuance, service, and return of citation. Reed Elsevier, Inc. v. Carrollton-Farmers Branch Indep. Sch. Dist., 180 S.W.3d 903, 905 (Tex. App.-Dallas 2005, pet. denied). For a default judgment to withstand direct attack, strict compliance with the rules of service of citation must affirmatively appear on the record. Primate Constr., Inc. v. Silver, 884 S.W.2d 151, 152 (Tex.1994).
        The return of citation constitutes prima facie evidence of the facts asserted therein. Id; Reed Elsevier, Inc., 180 S.W.2d at 904. We afford returns a fair, reasonable, and natural construction and give effect to their plain intent and meaning. Brown-McKee, Inc. v. J.F. Bryan & Assoc., 522 S.W.2d 958, 959 (Tex. Civ. App.-Texarkana 1975, no writ); see also Heggen v. Graybar Elec. Co., Inc., 2007 WL 43830, * 1 (Tex. App.-Houston [14th Dist.] January 9, 2007, no pet.) (mem. op., not designated for publication). We may consider the return in its entirety together with the citation to which it refers to determine compliance with rule 107. Brown-McKee Inc., 522 S.W.2d at 959; see also Owen v. Owen, 620 S.W.2d 669, 670 (Tex. Civ. App.-Dallas 1981, writ dism'd w.o.j.).
        Here, the record contains a copy of the citation and the officer's return. Appellant asserts the return fails to show the petition was served. We disagree. The citation states a copy of the petition is attached. The return of service expressly states the instrument and attachments were delivered to appellant. The return is signed by the sheriff. We conclude the recitals in the officer's return, when read with the citation, are sufficient to show the petition was served.
        Appellant also complains the record does not show valid service because the sheriff's return that was filed in the trial court did not include a copy of the petition that was served. Appellant cites no authority for the proposition that a copy of the petition that was served must be attached to the return that is filed in the court. The record contains the petition and we can see no reason to require another copy of the entire petition be included in the record as an attachment to the return. See Tex. R. Civ. P. 107; Opinions of Subcommittee on Interpretation of Rules, 8 Tex. B.J. 51 (1945) (it is not necessary that a copy of petition be attached to the return that is filed with the court). Finally, appellant complains that he did not sign the return of service. Rule 107 does not require the person being served to sign the return. See Tex. R. Civ. P. 107. We resolve the second issue against appellant.
        In appellant's first issue, appellant contends he was denied due process because he was not given notice of the divorce prove-up and hearing on unliquidated damages. The due process clause of the United States Constitution requires that a defendant who makes an appearance following service of process be given notice of any trial setting. See Peralta v. Heights Med. Ctr., Inc., 485 U.S. 80, 86-87 (1988); Schnitzius v. Koons, 813 S.W.2d 213, 215 (Tex. App.-Dallas 1991, no writ); Wilson v. Wilson, 132 S.W.3d 533, 536 (Tex. App.-Houston [1st Dist.] 2004, pet. denied). However, if a defendant fails to answer after being served, the plaintiff has no legal duty to notify the defendant before taking a default judgment on the causes of action asserted in the served petition. See Wilson, 132 S.W.3d at 536; Brooks v. Associates Fin. Servs. Corp., 892 S.W.2d 91, 94 (Tex. App.-Houston [14th Dist.] 1994, no writ). Nor is a party who fails to answer entitled to notice of the damages hearing. Long v. McDermott, 813 S.W.2d 622, 624 (Tex. App.-Houston [1st Dist.] 1991, no writ) We resolve the first issue against appellant.
        In his third and fourth issues, appellant contends the evidence is legally and factually insufficient to support the judgment granting the divorce and the property division. As a general rule, other than proof of unliquidated damages, no evidence is required to support a default judgment because a defendant's failure to appear or answer is taken as admission of the factual allegations in a plaintiff's petition. Stoner v. Thompson, 578 S.W.2d 679, 682 (Tex. 1979); In re E.M.V., 312 S.W.3d 288, 290-91 (Tex. App.-Dallas 2010, no pet.). However, under section 6.701 of the family code, “[i]n 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, a default judgment of divorce is subject to an evidentiary attack on appeal. Agraz v. Carnley, 143 S.W.3d 547, 552 (Tex. App.-Dallas 2004, no pet.).
        Appellant first attacks the sufficiency of the evidence to show appellee was a domiciliary of Texas for at least six months and a resident of Collin County at least ninety days before filing suit for divorce as required by section 6.301 of the Texas Family Code. Tex. Fam. Code Ann. § 6.301 (West 2006). At the prove-up hearing, appellee testified positively and directly that she was a domiciliary of Texas for six months and a resident of Collin County for ninety days before filing suit. Appellant asserts the trial court should not have credited this testimony because a document attached to her petition, a protective order against appellant, shows that almost two years before filing the petition, she resided in Garland, which is not in Collin County. The protective order was not admitted into evidence and, even if it was, it is not probative of appellant's residence two years later. We conclude the evidence is legally and factually sufficient to prove domicile and residence. See Barry v. Barry, 193 S.W.3d 72, 75 (Tex. App.-Houston [1st Dist.] 2006, no pet.).         Appellant next complains that the trial court erred in awarding certain “separate property” to appellee and in dividing the community estate and debts. The trial court awarded appellee as her “sole and separate” property “[a]ll household furniture, furnishings, fixtures, goods, art objects, collectibles, appliances, and equipment in the possession of wife or subject to her sole control, including kitchen equipment.” Appellant was similarly awarded “[a]ll household furniture, furnishings, fixtures, goods, art objects, collectibles, appliances, and equipment” in his possession and subject to his sole control. While the judgment states the property was awarded as each parties' separate property, the judgment also indicates it constitutes the division of the marital estate. In either event, the trial court's judgment is not supported by the evidence.
        A party asserting separate property has the burden of rebutting the community property presumption by clear and convincing evidence. Chavez v. Chavez, 269 S.W.3d 763, 767 (Tex. App.-Dallas 2008, no pet.). Appellee presented no evidence on the existence of any separate property. Thus, to the extent the trial court awarded the property as separate property, it was error.
        Assuming the property was awarded as a division of the marital estate, it was also erroneous. There must be some reasonable basis in the record to support the trial court's division of the community estate. In re E.M.V., 312 S.W.3d at 291; Sandone v. Miller-Sandone, 116 S.W.3d 204, 207 (Tex. App.-El Paso 2003, no pet.). Here, there was no evidence presented at the prove-up hearing concerning the size or value of the community assets. Moreover, although the trial court ordered appellant to pay certain specified debts totaling $90,954.55, appellee did not present any evidence of the debts. We conclude the trial court abused its discretion in dividing the community estate in the absence of any evidence in the record. E.M.V., 312 S.W.3d at 291; see also O'Neal v. O'Neal, 69 S.W.3d 347, 350 (Tex. App.-Eastland 2002, no pet.).
        In his fifth, sixth, and seventh issues, appellant complains of the $250,000 in damages awarded to appellee for her assault claim. In her petition, appellee pleaded for past and future medical expenses, past and future pain and suffering, mental anguish, physical impairment, and disfigurement. She also pleaded for exemplary damages. The trial court awarded a flat damage award of $250,000 for both actual and exemplary damages. In his sixth issue, appellant asserts the evidence is legally and factually insufficient to support the damage award.
        The legal and factual sufficiency of the evidence supporting an award of unliquidated damages after a default judgment may be challenged on appeal. Holt Atherton Indus., Inc. v. Heine, 835 S.W.2d 80, 84-86 (Tex. 1992); Arenivar v. Providian Nat'l Bank, 23 S.W.3d 496, 498 (Tex. App.-Amarillo 2000, no pet.) In reviewing a legal sufficiency point, we review the record of the damages hearing in the light most favorable to the verdict and indulge every reasonable inference to support the judgment. City of Keller v. Wilson, 168 S.W.3d 802, 822 (Tex. 2005). In reviewing a factual sufficiency challenge, we must consider all the evidence and set aside the finding only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex.1986).
        At the hearing to prove up her claim of unliquidated damages, appellee relied entirely on her own testimony. Appellee's testimony regarding damages is a single page of the reporter's record consisting of “yes” and “no” responses to her attorney's questions. In this manner, she presented evidence that appellant grabbed her, threw her down a flight of stairs and struck her in the head with a “foreign object.” Appellee lost consciousness as a result of the attack. She said she incurred medical expenses and will continue to incur medical expenses. She suffered physical pain, suffering, mental anguish, physical impairment and disfigurement as a result of the attack. She said she would continue to suffer these damages because of the nature of this assault and her injuries. However, appellee failed to provide any underlying facts concerning her injury or her damages. The judgment gave appellee a single $250,000 lump sum award for both actual damages and exemplary damages. The judgment indicated the award included damages for “medical expenses, physical pain, suffering and mental anguish, physical impairment and disfigurement.”
        A damages award must have some basis in the record. While appellee likely suffered significant compensable damages, there is nothing in this record that allows us to review the award. There was no testimony presented to establish the extent of pain suffered, any disfigurement, mental anguish, or physical impairment. For an award of mental anguish damages in particular to survive a legal sufficiency challenge, a plaintiff must present direct evidence of the nature, duration, and severity of her mental anguish which establishes a substantial disruption in her daily routine. EMC Mort. Corp. v. Jones, 252 S.W.3d 857, 871 (Tex. App.-Dallas 2008, no pet.). Appellant presented no evidence germane to her mental anguish claim. Nor did appellee present any evidence of her medical expenses. While appellee testified she had incurred medical bills, she did not present any evidence of the bills at the hearing. Further, to prove the reasonableness and necessity of medical services, a plaintiff must either submit an affidavit or provide expert testimony. Whitaker v. Rose, 218 S.W.3d 216, 223 (Tex. App.-Houston [14th Dist.] 2007, no pet.). The trial court's judgment also ordered appellant to pay certain bills to medical providers as part of the division of the marital estate; these bills may represent the same medical bills pleaded for and apparently awarded as damages. This would pose problems of double recovery if appellant had to pay both the provider and appellee for the same bills. Regardless, because the record is devoid of any evidence of any bills, it is impossible to make even this conclusion. We conclude there is no evidence of appellee's medical expenses. See id. Because the evidence is legally insufficient to support at least two possible damage elements, we must reverse the entire award. See id; Jackson v. Gutierrez, 77 S.W.3d 898, 903-04 (Tex. App.-Houston [14th Dist.] 2002, no pet.).         If a plaintiff fails to present legally sufficient evidence of unliquidated damages in a default judgment case, the proper disposition is remand for a new trial on damages. Holt Atherton Indust., Inc., 835 S.W.2d at 86. Because appellant is entitled to a new trial on unliquidated damages, we need not reach appellant's fifth and seventh points of error also complaining of the damages award.
        In his eighth and final issue, appellant asserts there is no evidence to prove venue or show he committed the elements of assault. Appellant presents no legal authority or substantive argument to support this issue. We conclude it is not adequately briefed and presents nothing to review. Huey v. Huey, 200 S.W.3d 851, 854 (Tex. App.-Dallas 2006, no pet.). We resolve the final issue against appellant.
        We affirm that the part of the trial court's judgment granting the divorce and finding appellant liable for assault. We reverse and remand for a new property division and for a new trial on damages for assault.
 
                                                          
                                                          MICHAEL J. O'NEILL
                                                          JUSTICE
                                                                                  
091203F.P05