ALFREDO SUAREZ v. MELISSA SUAREZ--Appeal from 103rd District Court of Cameron County

   NUMBER 13-04-108-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

  CORPUS CHRISTI  B EDINBURG

ALFREDO SUAREZ, Appellant,

v.

MELISSA SUAREZ, Appellee.

   On appeal from the 103rd District Court

of Cameron County, Texas.

MEMORANDUM OPINION

 Before Chief Justice Valdez and Justices Rodriguez and Castillo Memorandum Opinion by Chief Justice Valdez

Appellant, Alfredo Suarez, appeals from a default judgment by the trial court entering a decree of divorce between himself and appellee, Melissa Suarez. Alfredo appeals in two issues: (1) the trial court erred in denying his motion for new trial, and (2) there was legally and factually insufficient evidence to support the trial court=s division of the community estate, which was disproportionate and favored Melissa. Based on the insufficiency of the evidence supporting the trial court=s division of the marital property, we reverse and remand.

Background

Alfredo originally filed a petition for divorce from Melissa in April of 2003. Melissa then filed a counter-petition. Each party alleged that the other was at fault for the break-up of the marriage. Alfredo and his counsel did not appear at the trial, which was held before a judge in November 2003. The judge entered a default judgment in Alfredo=s absence that divided the community estate and provided for the conservatorship and support of the two children of the marriage.

Following entry of the default judgment, Alfredo filed a motion for new trial, which was denied, and a notice of appeal. We address his two issues on appeal.

Motion for New Trial

By his first issue, Alfredo argues that the trial court erred in denying his motion for new trial because he had fulfilled the required elements of motions for new trial following post-answer default judgments.

The rules that trial courts must follow in determining whether to grant a motion for new trial after a default judgment are articulated as a three-prong test in Craddock v. Sunshine Bus Lines, Inc., 133 S.W.2d 124, 126 (Tex. 1939). See Lopez v. Lopez, 757 S.W.2d 721, 722 (Tex. 1988). Under Craddock, when the defaulting party files a motion for new trial to challenge a default judgment, he must allege and support with sworn proof the following elements: (1) his failure to appear was not intentional, or the result of conscious indifference, but was due to a mistake or accident; (2) he has a meritorious defense; and (3) the motion for new trial will not occasion a delay or otherwise work an injury to the nonmoving party. See Craddock, 133 S.W.2d at 126; see also Angelo v. Champion Restaurant Equip. Co., 713 S.W.2d 96, 97 (Tex. 1986).

Alfredo=s allegations in his motion for new trial regarding his failure to appear were neither verified nor supported by an affidavit or any other evidence. Thus, his contentions cannot be considered competent evidence presented in satisfaction of the Craddock elements. See Ivy v. Carrell, 407 S.W.2d 212, 214 (Tex. 1966) (requiring motion for new trial to set aside default judgment to be supported by affidavits or other competent evidence); Wiseman v. Levinthal, 821 S.W.2d 439, 442 (Tex. App.BHouston [1st Dist.] 1991, no writ). Furthermore, Alfredo does not explain how his failure to appear was due to a mistake or accident, as is required by the first prong of the Craddock test; instead, he simply notes that a motion for continuance had been filed and that his counsel was not in town on the day of trial. See Craddock, 133 S.W.2d at 126. Without explanation for his failure to appeal, we cannot overturn the trial court=s denial of Alfredo=s motion for new trial. Accordingly, Alfredo=s first issue is overruled.

Legal and Factual Insufficiency

By his second issue on appeal, Alfredo argues that there is no evidence or, in the alternative, insufficient evidence to support the disproportionate division of community assets in favor of his former wife, Melissa.

A trial court is presumed to have properly exercised its discretion in dividing the assets of a marriage. Murff v. Murff, 615 S.W.2d 696, 699 (Tex. 1981); Saldana v. Saldana, 791 S.W.2d 316, 319 (Tex. App.BCorpus Christi 1990, no writ). In this regard, the trial court has wide discretion in dividing the parties' community estate and that division should not be corrected on appeal absent a clear abuse of discretion. Murff, 615 S.W.2d at 698; Saldana, 791 S.W.2d at 319. Under this type of review, legal and factual insufficiency are not independent grounds of error, but rather relevant factors in assessing whether the trial court abused its discretion. Zorilla v. Wahid, 83 S.W.3d 247, 252 (Tex. App.BCorpus Christi 2002, no pet.).

The Texas Family Code requires the trial court in a divorce decree to divide the estate of the parties in a manner that the court deems just and right, having due regard for the rights of each party and any children of the marriage. See Tex. Fam. Code Ann. ' 7.001 (Vernon 1998). Although the trial court is not required to divide the community estate equally, its division must be equitable. See Zieba v. Martin, 928 S.W.2d 782, 790 (Tex. App.BHouston [14th Dist.] 1996, no writ). There must be some reasonable basis for an unequal division. See id. The trial court may consider many factors, including the parties' earning capacities, education, business opportunities, physical condition, financial condition, age, size of separate estates, and the nature of the property. See Murff, 615 S.W.2d at 699; Zorilla, 83 S.W.3d at 252. The value of community assets is generally determined at the date of divorce or as close to it as possible. Handley v. Handley, 122 S.W.3d 904, 908 (Tex. App.BCorpus Christi 2003, no pet.); Grossnickle v. Grossnickle, 935 S.W.2d 830, 837 (Tex. App.BTexarkana 1996, writ denied).

Melissa was obligated to present evidence at trial of the material allegations in her petition, as even in the context of a post-answer default judgment, the appearing party must nonetheless produce evidence proving her case. See Stoner v. Thompson, 578 S.W.2d 679, 682 (Tex. 1979); Agraz v. Carnley, 143 S.W.3d 547, 552 (Tex. App.BDallas 2004, no pet.).

Melissa filed an unsworn inventory of community and personal assets with the court when she appeared for trial. She also filed a proposed division of assets that, relying on the valuation of items in the inventory, awarded Alfredo 47.30 percent of the community assets and awarded her the remaining 52.70 percent. Alfredo, however, argues that there is no evidence or insufficient evidence that two certificates of deposit (CDs), the value of which was awarded to him, still retained their value as of the date of the divorce. In fact, he argues that these CDs had been depleted by the parties before the onset of the divorce proceedings.[1] Melissa did not testify regarding these CDs at trial. The inventory she submitted noted that the account balances listed for the two CDs were current Aas of August 11, 1999" for one, then valued at $6,964.54, and Aas of August 21, 1998" for the other, then valued at $15,436.00. The parties= divorce hearing occurred on November 21, 2003, more than four years after either account balance was last known. This is insufficient to serve as evidence of the value of the CDs at the actual time of the divorce proceedings.[2] See Handley, 122 S.W.3d at 908; Grossnickle, 935 S.W.2d at 837. The submitted inventory does not constitute sufficient evidence of the total value of the community estate at the time of division. See Wilson v. Wilson, 132 S.W.3d 533, 538 (Tex. App.BHouston [1st Dist.] 2004, no pet.) (holding that "given the dearth of evidence identifying, describing, and valuing the community estate . . . there is insufficient evidence to support the division of assets"); O'Neal v. O'Neal, 69 S.W.3d 347, 349-50 (Tex. App.BEastland 2002, no pet.) (holding that descriptions of property without adequate evidence of that property=s value were insufficient evidence on which to base a property division).

We agree with the conclusion reached by the Houston court of appeals in its Wilson decision, which states the following: AA default judgment stands against defenses that could have been raised and were not, but one granting affirmative relief will not stand without affirmative proof to support it. Here, the evidence is insufficient to support the division of assets in the final decree of divorce.@ Wilson, 132 S.W.3d at 539. Accordingly, Alfredo=s second issue is sustained.

Conclusion

We reverse and remand to the trial court with respect to the division of the community estate of the parties. We affirm the decree of the trial court in all other respects.

ROGELIO VALDEZ

Chief Justice

Concurring and Dissenting Memorandum

Opinion by Justice Castillo.

Memorandum Opinion delivered and

filed this 4th day of May, 2006.

[1] If Alfredo=s allegation that the CDs had no value at the time of the divorce decree is accurate, then Alfredo was actually only awarded 38.70 percent of the community estate and Melissa was awarded the remaining 61.30 percent.

[2] Other items included as community assets and awarded to Alfredo in the division of the estate, including Alfredo=s retirement benefits from Teachers Retirement System, an IRA in his name from PFS Shareholder Savings, and his New York Life Annuity policy had unknown values at the time of the divorce.