Opinion
04-21-00207-CV
07-13-2022
Eduardo AQUINO, Appellant v. Piedad AQUINO, Appellee
From the 225th Judicial District Court, Bexar County, Texas Trial Court No. 2017CI19584 Honorable Monique Diaz, Judge Presiding
Sitting: Patricia O. Alvarez, Justice, Irene Rios, Justice Beth Watkins, Justice
MEMORANDUM OPINION
Beth Watkins, Justice
In this restricted appeal of a divorce decree, appellant Eduardo Aquino challenges the trial court's division of marital assets. We affirm in part and reverse and remand in part.
Background
Appellee Piedad Aquino filed for divorce from Eduardo in 2017. Eduardo filed an answer and counterpetition in response. Despite having proper notice of the trial, Eduardo failed to appear. The trial court, relying on the written interrogatories provided by Piedad, divided the marital estate, and signed a default final decree of divorce on December 9, 2020. Eduardo filed this restricted appeal.
Analysis
Restricted Appeal of a Just and Right Division
Standard of Review
In a restricted appeal, an appellant must show: (1) it filed a notice of appeal within six months of the signing of the challenged judgment; (2) it was a party to the underlying lawsuit; (3) it did not participate in the decision-making event that resulted in the challenged judgment and did not timely file any post-judgment motions or requests for findings of fact or conclusions of law; and (4) error is apparent on the face of the record. Tex.R.App.P. 30, 26.1(c); Alexander v. Lynda's Boutique, 134 S.W.3d 845, 848 (Tex. 2004). A restricted appeal differs from a regular appeal in that the error must appear "on the face of the record." Norman Commc'ns v. Tex. Eastman Co., 955 S.W.2d 269, 270 (Tex. 1997) (per curiam). The face of the record consists of all of the papers on file in the appeal. Chapa v. Chapa, No. 04-17-00345-CV, 2018 WL 1934240, at *1 (Tex. App.-San Antonio Apr. 25, 2018, no pet.) (mem. op.).
Applicable Law
In a divorce proceeding, a trial court "shall order a division of the estate of the parties in a manner that the court deems just and right, having due regard for the rights of each party[.]" Tex. Fam. Code Ann. § 7.001. In dividing community property, the trial court may consider many factors, including the parties' individual earning capacities, abilities, education, business opportunities, physical condition, financial condition, age, and size of separate estates, as well as any future needs for support, expected inheritance, custody of any children, reimbursements, gifts to a spouse during marriage, excessive community property gifts to others, and wasting of community assets. Murff v. Murff, 615 S.W.2d 696, 698 (Tex. 1981); Zieba v. Martin, 928 S.W.2d 782, 790-91 (Tex. App.-Houston [14th Dist.] 1996, no writ). The Texas Family Code also provides that a petition for divorce "may not be taken as confessed if the respondent does not file an answer." Tex. Fam. Code Ann. § 6.701. This means petitioners must present evidence to support their petitions. Short v. Short, No. 05-21-00095-CV, 2022 WL 405821, at *1 (Tex. App.- Dallas Feb. 10, 2022, no pet.) (mem. op.). Evidence of the valuation of the property in question is necessary to know "the size of the community pie" and whether "the slices awarded to each spouse were just and right." Sandone v. Miller-Sandone, 116 S.W.3d 204, 207-08 (Tex. App.-El Paso 2003, no pet.). In other words, without evidence of valuation, it is impossible to determine whether a trial court has followed the Texas Family Code's standard of "just and right" in the trial court's division of the property. See id. at 208.
Application
It is undisputed that Eduardo meets the first three elements to satisfy the requirements of a restricted appeal: (1) Eduardo filed his notice of restricted appeal on May 19, 2021, less than six months from the date the final decree of divorce was signed on December 9, 2020; (2) Eduardo was a party to the underlying suit; and (3) he did not appear at the hearing, nor did he file a post-judgment motion or request for findings of fact and conclusions of law. Alexander, 134 S.W.3d at 848. Therefore, the only element in controversy is the fourth-whether error is apparent on the face of the record. See id.
In deciding whether an error on the face of the record exists, we must determine whether a trial court may perform a just and right division of the estate with some evidence of the property in the estate but without any evidence of the value of the property in the estate. See Houston v. Thorpe, No. 04-19-00469-CV, 2020 WL 3547988, at *5-6 (Tex. App.-San Antonio July 1, 2020, no pet.) (mem. op.). Here, Piedad presented no evidence to establish the value of any property in the marital estate. Although Piedad presented written interrogatories to prove up the decree, these interrogatories fail to include the value of any property in the estate. Because Piedad presented no other evidence about the value of the property, the trial court had no evidence on which it could rely in dividing the property. We therefore cannot determine whether its division was "just and right." Tex. Fam. Code § 7.001; Sandone, 116 S.W.3d. at 205.
This case bears many similarities to Chapa v. Chapa in which this court found error apparent on the face of the record when there was no evidence about the value of the property the trial court divided in its divorce decree. Chapa, 2018 WL 1934240, at *2. Without valuation of the property, a trial court cannot make a judgment that is "just and right." Id.; see also Houston, 2020 WL 3547988, at *5-6 (applying Chapa and remanding judgment on insufficient evidence grounds); Smith v. Hickman, No. 04-19-00182-CV, 2020 WL 1442663, at *2 (Tex. App.-San Antonio Mar. 25, 2020, no pet.) (mem. op.) (quoting Chapa to reinforce principle that petitioner must provide evidence of valuation of marital estate for a "just and right" division).
Conclusion
The trial court received no evidence of the value of the property involved. We therefore reverse the portion of the final divorce decree that divides the marital estate and remand this cause to the trial court to determine the value of the assets and liabilities of the marital estate and to divide the property according to what is "just and right." We sustain Eduardo's first issue. Because our ruling is dispositive, we need not consider Eduardo's second issue-that the trial court erred in awarding Piedad an ownership interest in a professional LLC. Tex.R.App.P. 47.1. The final decree of divorce is otherwise affirmed, including the provision granting the parties' divorce.