Jeanette Rodgers f/k/a Jeanette Perez v. Gabriel Perez Appeal from 98th District Court of Travis County (memorandum opinion)

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TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN NO. 03-16-00313-CV Jeanette Rodgers f/k/a Jeanette Perez, Appellant v. Gabriel Perez, Appellee FROM THE DISTRICT COURT OF TRAVIS COUNTY, 98th JUDICIAL DISTRICT NO. D-1-FM-13-003127, HONORABLE KARIN CRUMP, JUDGE PRESIDING MEMORANDUM OPINION Appellant Jeanette Rodgers appeals from a no-answer default judgment of divorce that ended her marriage to appellee Gabriel Perez. The Family Code provides that failure to answer in a suit for divorce does not operate as an admission of the facts alleged in the plaintiff’s petition,1 contrary to the general rule, necessitating that Perez present evidence to support the material allegations in his petition.2 Rodgers complains on appeal that Perez failed to do so. Specifically, Rodgers contends that Perez failed to present legally sufficient evidence to support decree provisions dividing the marital estate; awarding child support, attorney’s fees, and court costs; and purporting to incorporate agreements between the parties. We agree, and will accordingly reverse and remand. 1 2 See Tex. Fam. Code § 6.701. See id.; In re E.M.V., 312 S.W.3d 288, 291 (Tex. App.—Dallas 2010, no pet.); see also Wolk v. Wolk, No. 03-06-00595-CV, 2007 WL 2682173, at *2 (Tex. App.—Austin Sept. 12, 2007, no pet.) (mem. op.). BACKGROUND Rodgers and Perez married in 2002 and had two children together. In June 2013, Perez filed a petition for divorce in Travis County. His prayers for relief included awarding him a disproportionate share of the marital estate, appointing him sole managing conservator of the children, ordering Rodgers to pay him child support, awarding him a judgment for retroactive child support, ordering Rodgers to obtain a life-insurance policy on herself and name Perez as the sole beneficiary, and ordering Rodgers to pay court costs and Perez’s attorney’s fees. The record contains a return of service reflecting personal service on Rodgers within the same month. Rodgers did not file an answer or appear thereafter. Aside from a successful motion by Perez to retain the case on the docket, no further action is reflected until March 2016, when Perez obtained a hearing in an effort to secure a default judgment. Only Perez appeared, and his testimony—transcribed within a mere thirteen pages of the reporter’s record—consists chiefly of him explaining his version of the couple’s separation, that Rodgers had since moved to Houston and later Idaho, and that, according to Perez, Rodgers has not seen the children since the Idaho move but remains in contact with them by phone. Perez further testified that he did not currently have insurance for the children but that he was looking into obtaining it through either the Affordable Care Act or his new employer after he completed an initial probationary period. Perez did not offer any further evidence, whether by testimony or documentary proof. Following the hearing, the district court signed a forty-one page divorce decree that divided the marital estate; appointed Perez as sole managing conservator over both children; directed Rodgers to pay $310 in child support a month; awarded Perez $9,920 in retroactive child support and 2 $4,960 in retroactive medical support; ordered Rodgers, as additional child support, to purchase and maintain a $100,000 life-insurance policy on herself and name Perez as the sole beneficiary for the benefit of the children; recited that insurance for the children was available at the cost of $250 a month and ordered Rodgers to pay Perez $125 a month as additional child support to offset that cost; awarded Perez’s counsel $2,500 in attorney’s fees; and awarded Perez $2,500 in court costs. The decree also contained a clause stating that the parties warranted that they had not incurred any debt, obligation, or liability that was not mentioned in the decree and agreed to indemnify the other if a third party attempted to hold one of them liable for an undisclosed debt, obligation, or liability. Another clause recited that both parties had read the decree, acknowledged it effected a just and right division of the marital estate, and agreed that they had each signed the decree voluntarily and without coercion. Rodgers’s signature does not appear on the decree. DISCUSSION By six issues, which we have reordered, Rodgers asserts that the evidence is legally insufficient to support the division of the marital estate; the award of attorney’s fees to Perez’s counsel; the orders that Rodgers, as additional child support, maintain a life insurance policy on herself and pay Perez $150 a month to offset the cost of insurance for the children; the award of court costs; and the indemnification and acknowledgment clauses.3 3 Perez did not file a brief. 3 APPLICABLE LAW AND STANDARD OF REVIEW As previously noted, section 6.701 of the Texas Family Code provides that “[i]n a suit for divorce, the petition may not be taken as confessed if the respondent does not file an answer.”4 Perez was therefore required to provide evidence in support of the material allegations in his petition even though Rodgers had failed to file an answer.5 We review the decree under an overarching abuse-of-discretion standard6 that has two components—(1) whether the district court had sufficient evidence upon which to exercise its discretion (i.e., traditional legal or factual sufficiency review), and, if so, (2) whether the district court erred in its application of that discretion to those facts.7 We consider the evidence before the district court in the light most favorable to the district court’s ruling, and we will uphold the ruling on any legal theory supported by the evidence.8 A district court does not abuse its discretion if there is some substantive and probative evidence to support its decision.9 4 Tex. Fam. Code § 6.701. 5 See id.; In re E.M.V., 312 S.W.3d at 291. 6 Iliff v. Iliff, 339 S.W.3d 126, 133 (Tex. App.—Austin 2009), aff’d, 339 S.W.3d 74 (Tex. 2011). A district court abuses its discretion if it acts arbitrarily, unreasonably, or without regard to guiding rules or principles. Id. 7 See Zeifman v. Michels, 212 S.W.3d 582, 587 (Tex. App.—Austin 2006, pet. denied); see also Giesler v. Giesler, No. 03-08-00734-CV, 2010 WL 2330362, at *2 (Tex. App.—Austin June 10, 2010, no pet.) (mem. op.). 8 Coburn v. Moreland, 433 S.W.3d 809, 823 (Tex. App.—Austin 2014, no pet.). 9 Id. 4 Division of Marital Estate Rodgers argues in her first issue that the district court abused its discretion because there was no evidence on which it could base its division of the community estate. We agree. Section 7.001 of the Texas Family Code requires the district court in a divorce case to make a “just and right” division of community property with “due regard” for the rights of the parties and of the children of the marriage.10 The district court has wide latitude in dividing the marital estate, and we indulge every presumption in favor of its decision.11 Nevertheless, the division of property is an abuse of discretion if there is not sufficient evidence in the record to support it.12 Perez did not address the nature, size, or components of the community estate in his testimony, nor did he offer any such evidence through other means. On this record, the district court abused its discretion because it had no evidence on which to base its division of the community estate.13 We sustain Rodgers’s first issue. 10 Tex. Fam. Code § 7.001. 11 See Murff v. Murff, 615 S.W.2d 696, 698 (Tex. 1981); Roberts v. Roberts, No. 04-16-00170CV, 2017 WL 1902591, at *6 (Tex. App.—San Antonio May 10, 2017, no pet.). 12 Wilson v. Wilson, 132 S.W.3d 533, 537 (Tex. App.—Houston [1st Dist.] 2004, pet. denied). 13 See Barry v. Barry, 193 S.W.3d 72, 75 (Tex. App.—Houston [1st Dist.] 2006, no pet.) (holding evidence insufficient to support division of estate because “the testimony at trial only showed that she requested the division of property as it was given”); Wilson, 132 S.W.3d at 537 (“Given the dearth of evidence identifying, describing, and valuing the community estate, we hold that there is insufficient evidence to support the division of assets.”); Sandone v. Miller-Sandone, 116 S.W.3d 204, 207–08 (Tex. App.—El Paso 2003, pet. denied) (holding court abused its discretion in dividing marital property “with no evidence of value”). 5 Child Support, Attorney’s Fees, and Court Costs Our disposition of Rodgers’s first issue requires us to remand the entire division of property for reconsideration.14 This includes the district court’s award of attorney’s fees because the district court expressly made the award as part of its division of the community estate.15 Similarly, we must reverse the award of child support—including the requirement that Rodgers pay Perez $150 a month to cover the purported costs of the children’s insurance and to maintain life insurance on herself—because the district court’s award of child support could be “materially influenced” by its division of the community estate, and we cannot substitute our discretion for that of the district court.16 We likewise reverse the award of court costs so that the district court can determine whether an award of costs to either party would be reasonable following its resolution of Perez’s claims on remand.17 Moreover, even aside from their relationship to the overall division of the community 14 See Jacobs v. Jacobs, 687 S.W.2d 731, 732 (Tex. 1985); see also Giesler, 2010 WL 2330362, at *4 (reversing and remanding on similar facts). 15 See Vazquez v. Vazquez, 292 S.W.3d 80, 86 (Tex. App.—Houston [14th Dist.] 2007, no pet.) (reversing award of attorneys’ fees as part of division of community estate because court of appeals had already held evidence was insufficient to support division of community property); Barry, 193 S.W.3d at 76 (same). 16 See Wilson, 132 S.W.3d at 539 (remanding child support issue after holding insufficient evidence supported division of marital estate because “such a claim may be ‘materially influenced’ by the property division”); Vazquez, 292 S.W.3d at 86 (same); see also Colmenero v. Colmenero, No. 01-14-00071-CV, 2015 WL 1245849, at *3 (Tex. App.—Houston [1st Dist.] Mar. 17, 2015, no pet.) (mem. op.) (same). We express no opinion on the propriety of any of these awards, only that the court should have an opportunity to reconsider them on remand in light of its new division of the community estate. 17 See Tex. Fam. Code § 6.708(a) (providing, in suit for divorce, “the court as it considers reasonable may award court costs to a party”); see also Ramsey v. Champion, No. 10-12-00394-CV, 2014 WL 1882758, at *6 (Tex. App.—Waco May 8, 2014, pet. denied) (mem. op.) (remanding to reconsider award of costs in light of the court of appeals’s decision); Wolk, 2007 WL 2682173, at *4 6 estate, we would reverse most if not all of the awards because Perez failed to present any evidence to support them individually. We accordingly sustain Rodgers’s second through fifth issues. Indemnification and Acknowledgment Clauses Rodgers asserts in her sixth issue that there is no evidence to support either the indemnification or acknowledgment clauses. She specifically contends there is no evidence that she acknowledged the divorce decree worked a just and right division of the marital estate or that she and Perez agreed to indemnify each other for any outstanding, undisclosed liabilities. We agree. The record reflects that Rodgers did not make participate in this case, and there is no evidence regarding any agreement by the parties. Absent any such evidence of an agreement, the district court abused its discretion by including these provisions in the decree of divorce.18 We sustain Rodgers’s sixth issue. CONCLUSION We reverse the portion of the decree dividing the community estate and awarding attorney’s fees, child support, and court costs, and remand for further proceedings.19 (remanding award of attorney’s fees and costs on similar facts to this case). 18 See Vazquez, 292 S.W.3d at 86 (finding no evidence supported substantially similar provisions in an divorce decree). 19 See Dolgencorp of Tex., Inc. v. Lerma, 288 S.W.3d 922, 930 (Tex. 2009) (holding that proper remedy when reviewing court finds insufficient evidence supporting default judgment is to reverse and remand for further proceedings); Gonzalez v. Gonzalez, 331 S.W.3d 864, 869 (Tex. App.—Dallas 2011, no pet.) (doing same in context of divorce case). 7 Bob Pemberton, Justice Before Justices Puryear, Pemberton, and Field Reversed and Remanded Filed: September 27, 2017 8