Opinion
01-22-00550-CV
08-29-2023
GEORGE GONZALEZ, Appellant v. NARCISA GONZALEZ, Appellee
On Appeal from the 245th District Court Harris County, Texas Trial Court Case No. 2021-38029
En Banc Court consists of Chief Justice Adams and Justices Kelly, Goodman, Landau, Hightower, Countiss, Rivas-Molloy, Guerra, and Farris.
EN BANC OPINION
April L. Farris Justice.
Appellee Narcisa Gonzalez sought a divorce from appellant George Gonzalez. George did not answer or appear in the divorce proceeding, and the associate judge rendered a default judgment of divorce. In the divorce decree, the court divided the parties' community estate.
In this restricted appeal, George argues that the trial court erred in its property division because the court had before it insufficient evidence to make a just and right division of the community estate. In making this argument, George contends that neither the trial court nor this Court can consider Narcisa's sworn inventory, which was filed with the trial court but not admitted into evidence at trial. This Court has previously held that a trial court may take judicial notice of the contents of a filed inventory even if that inventory has not been admitted into evidence. See Vannerson v. Vannerson, 857 S.W.2d 659, 670-71 (Tex. App.-Houston [1st Dist.] 1993, writ denied). George points out that over the past three decades, several intermediate appellate courts have disagreed with Vannerson and held that taking judicial notice of the contents of an inventory that has not been admitted into evidence is inappropriate.
Although a panel opinion has not yet issued, en banc consideration was requested and granted to address the above holding in Vannerson. See Tex. R. App. P. 41.2(c) ("If a vote is requested and a majority of the court's members vote to consider or reconsider the case en banc, the en banc court will consider or reconsider the case. Otherwise, a panel of the court will consider the case."). After careful and deliberate consideration, we overrule the portion of Vannerson holding that a trial court may take judicial notice of the contents of and rely upon an inventory that is on file with the court but that has not been admitted into evidence. We hold that a trial court may not take judicial notice of the contents of an inventory that has not been admitted into evidence, so the sworn inventory cannot support the judgment.
We affirm in part and reverse and remand in part.
Background
George and Narcisa married in 1988, and they have three adult children. Narcisa filed for divorce in June 2021, alleging that the marriage had become insupportable, George had committed adultery, and George was guilty of cruel treatment. Narcisa requested that she receive a disproportionate share of the marital estate in the trial court's property division.
George was served with citation on July 17, 2021. He did not, however, file an answer or otherwise appear in the divorce proceeding.
In September 2021, Narcisa filed a sworn inventory, appraisement, and proposed property division. She listed seven assets, including the marital residence and two vehicles, and provided values for the assets and any applicable outstanding debts related to the assets. One of the assets was a 401(k) plan "with RSC" in George's name. Narcisa stated that the value of this 401(k) plan was "unknown." Narcisa proposed that the court award her the residence, the vehicle in her possession, and the furniture and electronics in her possession.
The associate judge held a default hearing in January 2022. At the hearing, the court took judicial notice of its file, including the citation, return of service, and Narcisa's inventory. Narcisa testified that the marriage had become insupportable and there was no reasonable expectation of reconciliation. She did not testify to any specific facts relevant to fault in the breakup of the marriage.
Narcisa testified that the inventory she had filed with the court contained her proposal for dividing the assets and liabilities of the marital estate. Her counsel did not offer the inventory into evidence. She agreed with her counsel that she could not verify the balance of George's 401(k) plan because George did not answer the lawsuit and he "has always kept [her] in the dark regarding how much he has in that plan." She believed that approval of her proposed property division would be fair and equitable to both her and George.
The trial court asked Narcisa whether there was a mortgage on the home, and she responded that there was not. When asked by the court how much was believed to be in George's retirement account, Narcisa's counsel stated: "[S]everal years ago there were over a hundred thousand dollars in that, but-which is-I suspect that he has enough to balance the equity in the house." The trial court granted the divorce and approved Narcisa's proposed property division.
That same day, the associate judge signed a final decree of divorce. The decree dissolved the parties' marriage based on insupportability. The court awarded Narcisa the parties' marital residence, all furniture and personal effects in Narcisa's possession, and the vehicle in her possession. The court awarded George all furniture and personal effects in his possession, the vehicle in his possession, and his 401(k) plan.
George did not file any post-judgment motions. In July 2022, he filed a notice of restricted appeal. This appeal followed.
Division of Community Estate
In his sole issue on appeal, George argues that the trial court erred in dividing the parties' community estate because the court did not have sufficient information before it to make a just and right division of the estate. He also argues that because Narcisa did not offer her sworn inventory into evidence, the court could not take judicial notice of this document or rely on it in making the property division. Alternatively, he argues that insufficient evidence supports the property division even if the court could consider the sworn inventory.
George does not challenge the portion of the trial court's divorce decree dissolving his marriage to Narcisa.
A. Standard of Review in Restricted Appeal
A restricted appeal is available to a party who did not participate, either in person or through counsel, in a proceeding that resulted in a judgment against the party. See Tex. R. App. P. 30; Pike-Grant v. Grant, 447 S.W.3d 884, 886 (Tex. 2014) (per curiam). To prevail on a restricted appeal, the appellant must establish that (1) he filed notice of the restricted appeal within six months after the judgment was signed; (2) he was a party to the underlying lawsuit; (3) he did not participate in the hearing that resulted in the complained-of judgment, and he did not timely file any post-judgment motions or requests for findings of fact and conclusions of law; and (4) error is apparent on the face of the record. Pike-Grant, 447 S.W.3d at 886; Alexander v. Lynda's Boutique, 134 S.W.3d 845, 848 (Tex. 2004).
The only disputed factor here is whether the complained-of error is apparent on the face of the record. The "face of the record" consists "of all the papers on file in the appeal," including the clerk's record and any reporter's record. Norman Commc'ns v. Tex. Eastman Co., 955 S.W.2d 269, 270 (Tex. 1997) (per curiam); Cohen v. Bar, 569 S.W.3d 764, 770 (Tex. App.-Houston [1st Dist.] 2018, pet. denied). On restricted appeal, we can review whether the evidence was sufficient to support the judgment, but error must appear on the face of the record to be reversible. Wilson v. Wilson, 132 S.W.3d 533, 536 (Tex. App.-Houston [1st Dist.] 2004, pet. denied); see Norman Commc'ns, 955 S.W.2d at 270.
Generally, no evidence is required to support a default judgment, and a defendant's failure to appear or answer is taken as admission of the factual allegations in the plaintiff's petition. Cohen, 569 S.W.3d at 771. However, this rule is "narrower" in the context of a default divorce proceeding. Id.; Tex. Fam. Code § 6.701 ("In a suit for divorce, the petition may not be taken as confessed if the respondent does not file an answer."). A defendant's failure to answer or appear in a divorce proceeding "is taken only as an admission of the allegations in the petition regarding residence and domicile," but such failure does not admit the material allegations in the plaintiff's petition. Cohen, 569 S.W.3d at 770.
When a divorce defendant defaults, the petitioner must still present evidence to support the material allegations in the divorce petition. Vazquez v. Vazquez, 292 S.W.3d 80, 83-84 (Tex. App.-Houston [14th Dist.] 2007, no pet.). Thus, despite George's failure to answer or appear, Narcisa still bore the burden to prove the allegations in her petition concerning the division of the community estate. See Fuentes v. Zaragoza, 555 S.W.3d 141, 163 (Tex. App.-Houston [1st Dist.] 2018, no pet.) ("The petitioner-even in a default case-must provide sufficient evidence to permit a just and right division of the marital estate.").
B. Just and Right Division of Community Estate
In a divorce decree, the trial court shall order a division of the parties' community estate "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." Tex. Fam. Code § 7.001. Each spouse bears the burden to present sufficient evidence of the value of the community estate to enable the trial court to make a just and right division. Fuentes, 555 S.W.3d at 162. The trial court is not required to divide the community estate equally, but it must be divided equitably. Sandone v. Miller-Sandone, 116 S.W.3d 204, 207 (Tex. App.-El Paso 2003, no pet.). The court may order an unequal division of the estate as long as a reasonable basis for doing so exists. Fuentes, 555 S.W.3d at 162.
We review property division issues for an abuse of discretion, beginning with the presumption that the trial court properly exercised its discretion. Id. The trial court has broad discretion in making a just and right division of the community estate. Bradshaw v. Bradshaw, 555 S.W.3d 539, 543 (Tex. 2018). "Because the standards for dividing a community estate involve the exercise of sound judgment, a trial court must be accorded much discretion in its decision." Id. On appellate review, legal and factual insufficiency are not independent grounds for asserting error but are instead relevant factors in assessing whether a trial court abused its discretion. Cohen, 569 S.W.3d at 773.
In reviewing the trial court's property division, we consider (1) whether the court possessed sufficient information upon which to exercise its discretion and (2) whether the court erred in its application of that discretion. Id.; Fuentes, 555 S.W.3d at 162; Willis v. Willis, 533 S.W.3d 547, 551 (Tex. App.-Houston [14th Dist.] 2017, no pet.). In a legal sufficiency review, we view all the evidence in a light favorable to the finding, crediting favorable evidence if a reasonable factfinder could and disregarding contrary evidence unless a reasonable factfinder could not. City of Keller v. Wilson, 168 S.W.3d 802, 807 (Tex. 2005); Cohen, 569 S.W.3d at 773-74. In reviewing factual sufficiency, we consider all the evidence in a neutral light and set aside the finding only if the evidence is so weak as to make the finding clearly wrong and manifestly unjust. See Dow Chem. Co. v. Francis, 46 S.W.3d 237, 242 (Tex. 2001) (per curiam); Cohen, 569 S.W.3d at 774. A trial court abuses its discretion in dividing the community estate based on the respondent's default where the record does not support the valuation and division of the estate. Fuentes, 555 S.W.3d at 162.
In her divorce petition, Narcisa sought a disproportionate portion of the community estate. Narcisa filed a sworn inventory, appraisement, and proposed property division prior to trial. This inventory listed the following assets, the fair market value of the assets, any outstanding debt or liabilities related to the assets, and the net value of the assets:
• The marital residence, which had a fair market value of $141,952 and no outstanding debt;
• George's 401(k) retirement plan "with RSC," which had an "unknown" value;
• A checking account with Amegy Bank that was under the control of both spouses and had a value of $4,000;
• A 2017 Toyota Rav4 that was in Narcisa's possession and had a fair market value of $12,000, but also had $12,000 in outstanding debt, for a net value of $0;
• A 2016 Hyundai Santa Fe that was in George's possession and had a fair market value of $13,500, but also had $10,000 in outstanding debt, for a net value of $3,500;
• $3,000 worth of furniture and electronics in George's possession; and
• $100 worth of furniture and electronics in Narcisa's possession.
Narcisa proposed that the trial court award her the marital residence, the Toyota Rav4, and the furniture and electronics in her possession. She proposed that the court award George his 401(k) plan, the checking account, the Hyundai Santa Fe, and the furniture and electronics in his possession. Narcisa did not state a net value of the community estate as a whole or quantify the portion of the estate that she proposed each party receive. She did not provide any supporting documentation, appraisals, or financial records.
George did not answer or appear. At trial, the court took judicial notice of its file, and specifically mentioned that the file included "an inventory and appraisement." The court did not admit the inventory into evidence. The following is the extent of Narcisa's testimony concerning the marital estate:
Q. [W]e filed with the Court before today an inventory and appraisal of all the property that you claim you have acquired during the marriage; is that correct?
A. Yes, sir.
Q. And together with that inventory in the same page that holds the proposed division of assets and liabilities.
A. Yes, sir.
Q. Okay. Now, because your husband did not answer this lawsuit, we are unable to verify how much he has in his 401(k) plan with RSC; is that correct?
A. Yes. True.
Q. Okay. And he has always kept you in the dark regarding how much he has in that plan.
A. That's true, yes.
Q. Okay. Now, do you believe that based on the fact that he failed to answer this lawsuit and other facts in this case that you believe that if the judge approved your request as far as the division of the marital estate is concerned, that that will be fair and equitable both to you and your husband?
A. Yes.
Q. Now, we have filed with this Court a proposed final decree of divorce?
A. Yes.
Q. Okay. And that proposed decree of divorce contains all the terms of conditions related to the division of the marital estate?
A. Yes.
At the end of Narcisa's testimony, the court asked whether there was a mortgage on the marital residence. Narcisa responded that there was not. The court then asked, "[H]ow much do we believe is in his retirement account?" Narcisa's counsel responded: "[S]everal years ago there were over a hundred thousand dollars in that, but-which is-I suspect that he has enough to balance the equity in the house." The trial court orally granted the divorce and approved Narcisa's property division.
In the final divorce decree, the court awarded Narcisa the marital residence, all furniture and personal effects in Narcisa's possession, all funds in Narcisa's possession or subject to her sole control, and the Toyota Rav4. The court ordered Narcisa to pay, among other things, the balance due on the Rav4 and all taxes and other charges related to the marital residence. The court awarded George all furniture and personal effects in George's possession, all funds in George's possession or subject to his sole control, the 401(k) plan, and the Hyundai Santa Fe. The court ordered George to pay, among other things, the balance due on the Santa Fe.
On appeal, the parties first dispute whether the trial court could properly take judicial notice of Narcisa's inventory, which had been filed with the court prior to trial but was not entered into evidence. George acknowledges that this Court has previously held that a trial court does not err by making a property division based on an inventory that is filed with the court but not admitted into evidence because a court can take judicial notice of what is contained in its file. See Vannerson, 857 S.W.2d at 670-71. George argues that several of our sister intermediate appellate courts have declined to follow Vannerson on this point, instead holding that inventories must be admitted into evidence before they may be considered as support for a property division. Narcisa argues that Vannerson has not been overruled by the Texas Supreme Court or this Court sitting en banc, and therefore we are bound to follow it under principles of horizontal stare decisis. A panel of an appellate court "must follow materially indistinguishable decisions of earlier panels of the same court unless a higher authority," such as the appellate court sitting en banc, "has superseded that prior decision." Mitschke v. Borromeo, 645 S.W.3d 251, 256 (Tex. 2022). We voted to consider this case en banc to address our prior opinion in Vannerson.
Vannerson has been an outlier since the day it was decided. In Vannerson, the wife filed her inventory on the day of trial. See 857 S.W.2d at 670. Attached to the inventory were three exhibits: an exhibit listing property the wife claimed was her separate property, an exhibit listing property the wife claimed was her husband's separate property, and an exhibit listing property the wife claimed was community property. Id. at 667-68, 670. The three exhibits were admitted as evidence at trial, but the inventory itself was not. Id. at 670. The inventory also included a proposed property division, listed additional property not contained in any of the three exhibits, and referred to the debts and liabilities of the parties. Id. The trial court divided the marital estate and referenced the inventory in its findings of fact and conclusions of law, indicating that the court had relied on the inventory. Id.
On appeal, the husband-who did not appear for trial-argued that one of the court's conclusions of law was erroneous because it was based on the wife's inventory, which had not been admitted into evidence. Id. This Court disagreed, holding that the trial court did not err by relying on the inventory. Id. at 670-71. We reasoned that the inventory at issue in Vannerson "was filed and included in the papers before the trial court and was referred to by the trial court," so the trial court "could have taken judicial notice of what was contained in the file." Id. at 671. In so holding, we distinguished two earlier cases from the Tyler Court of Appeals in which the Tyler Court had refused to consider on appeal inventories that were never admitted into evidence but were filed with the trial court. See id. (citing Poulter v. Poulter, 565 S.W.2d 107, 110 (Tex. App.-Tyler 1978, no writ), and Bokhoven v. Bokhoven, 559 S.W.2d 142, 144 (Tex. App.-Tyler 1977, no writ)).
Several of our sister intermediate appellate courts have declined to follow Vannerson on this question. In Tschirhart v. Tschirhart, 876 S.W.2d 507, 508 (Tex. App.-Austin 1994, no writ), decided the following year, the Austin Court of Appeals decided an appeal brought by a divorced husband who challenged the trial court's division of the parties' community property. For support, the husband relied on property values that he had used in his sworn inventory. Id. The inventory "was filed with the district clerk," but it was "never introduced into evidence at trial." Id. The wife argued that because the trial court did not admit the inventory into evidence, the appellate court could not consider the inventory as evidence of the value of the community property. Id.
The Austin Court of Appeals considered Poulter, Bokhoven, and Vannerson and declined to follow Vannerson. Id. The Austin Court agreed that a trial court may take judicial notice of its own records, but it concluded that "judicial notice usually is limited to matters that are generally known or easily proven and that cannot reasonably be disputed." Id.; Tex. R. Evid. 201(b) (stating that court may judicially notice fact that is not subject to reasonable dispute because it "is generally known within the trial court's territorial jurisdiction" or "can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned"). A court may, for example, take judicial notice that a pleading has been filed in a case, but it may not "take judicial notice of the truth of allegations in its records." Tschirhart, 876 S.W.2d at 508.
The Austin Court then analogized an inventory and appraisement to a pleading, explaining that although an inventory is sworn, "it provides no basis for the property valuations." Id. at 509. The court further reasoned that when an inventory is not admitted into evidence, "cross-examination regarding its contents may be overlooked entirely or, if conducted, may be of limited value." Id. The Austin Court ultimately held that "unless a party's inventory is formally admitted into evidence at trial, that party may not rely on the inventory as evidence on appeal." Id.
Throughout the ensuing decades, many other Texas intermediate courts have followed Tschirhart in rejecting Vannerson's reasoning. See Barnard v. Barnard, 133 S.W.3d 782, 789 (Tex. App.-Fort Worth 2004, pet. denied) (holding that while trial court can take "judicial notice of the fact that a party's inventory has been filed," "unless a party's inventory is admitted into evidence at trial, it cannot be relied upon as evidence"); see also, e.g., In re Marriage of Johnson, No. 05-20-00517-CV, 2022 WL 123106, at *5 (Tex. App.-Dallas Jan. 13, 2022, no pet.) (mem. op.) (holding that because inventory "was not admitted into evidence," court "cannot consider it on appeal"); Banker v. Banker, 517 S.W.3d 863, 871 (Tex. App.-Corpus Christi- Edinburg 2017, pet. denied) ("Unless a party's inventory and appraisal has been admitted into evidence, it may not be considered as evidence of a property's characterization of value."); In re Marriage of Cone, No. 10-14-00179-CV, 2016 WL 1722821, at *5 n.1 (Tex. App.-Waco Apr. 28, 2016, no pet.) (mem. op.) ("A filed inventory that is not admitted into evidence is not evidence."); Jordan v. Jordan, No. 14-12-00114-CV, 2013 WL 2489577, at *1 n.6 (Tex. App.-Houston [14th Dist.] June 11, 2013, no pet.) (mem. op.) (concluding that "the trial court was entitled to take judicial notice that [husband] properly filed his inventory and appraisement, but could not consider its contents 'as evidence' for purposes of reaching the trial court's conclusions").
Nor can Vannerson be reconciled with this Court's opinions regarding the limits of judicial notice in other contexts. See In re A.M., No. 01-22-00689-CV, 2023 WL 2483549, at *5 (Tex. App.-Houston [1st Dist.] Mar. 14, 2023, no pet.) (mem. op.) (termination of parental rights); Perez v. Williams, 474 S.W.3d 408, 419-20 (Tex. App.-Houston [1st Dist.] 2015, no pet.) (child custody dispute); Kenny v. Portfolio Recovery Assocs., LLC, 464 S.W.3d 29, 34 (Tex. App.-Houston [1st Dist.] 2015, no pet.) (breach of contract); In re Shifflet, 462 S.W.3d 528, 538-39 (Tex. App.-Houston [1st Dist.] 2015, orig. proceeding) (parent-child relationship modification proceeding); Nwokedi v. Unlimited Restoration Specialists, Inc., 428 S.W.3d 191, 209 n.3 (Tex. App.-Houston [1st Dist.] 2014, pet. denied) (fraudulent transfer).
For example, in In re Shifflet, the mother filed a motion to modify the parent-child relationship and the paternal step-grandparents filed a petition in intervention. See 462 S.W.3d at 532-33. The mother requested that the trial court take judicial notice of factual findings in a temporary order that allegedly negated the step-grandparents' standing to intervene, thereby requiring dismissal of their petition in intervention. Id. at 534. The trial court took judicial notice of the temporary order and dismissed the petition. Id. at 535.
We conditionally granted mandamus relief, holding that the trial court abused its discretion by taking judicial notice of the temporary order. Id. at 538-39. We reasoned that the trial court could not take judicial notice of the truth of the temporary order's adjudicative findings because they did not meet the Rule 201(b) criteria: they were neither generally known within the territorial jurisdiction of the trial court nor capable of accurate and ready determination by resort to sources whose accuracy cannot be reasonably questioned. Id. at 539 (citing Tex. R. Evid. 201(b)). Because the improperly noticed facts amounted to no evidence, the mother had failed to prove that the step-grandparents lacked standing to intervene. Id.
Given this conflict, we overrule Vannerson's holding that a trial court can base a property division on facts set out in an inventory that was filed with the court but never admitted into evidence. Rule 201 limits the court's judicial notice to a fact that either "(1) is generally known within the trial court's territorial jurisdiction; or (2) can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned." Tex. R. Evid. 201(b). A document's contents do not achieve a cannot-reasonably-be-questioned status simply by appearing in the trial court's file. See Kenny, 464 S.W.3d at 34. While the trial court can take judicial notice "of the existence of certain documents in its records," such as an inventory, it may not take judicial notice of the truth of factual statements and allegations contained in that document. See id.
We therefore hold that the trial court's property division constitutes an abuse of discretion. Narcisa's inventory is the only item in the appellate record that provides any valuation of any piece of the parties' community property. However, because this inventory was not admitted into evidence, the trial court could not take judicial notice of the contents of the inventory or consider the inventory as evidence of the value of the parties' marital estate. "When evidence is the subject of improper judicial notice, it amounts to no evidence." Guyton v. Monteau, 332 S.W.3d 687, 693 (Tex. App.-Houston [14th Dist.] 2011, no pet.); see Banker, 517 S.W.3d at 871 ("Unless a party's inventory and appraisal has been admitted into evidence, it may not be considered as evidence of a property's characterization of value."). Aside from testifying that she was unable to verify the value of George's 401(k) plan and that she believed her proposed property division would be "fair and equitable" to both her and George, Narcisa provided no testimony concerning the value of any marital property. Narcisa's counsel stated that "several years ago there were over a hundred thousand dollars" in George's 401(k) plan, and counsel "suspect[ed] that [George] has enough to balance the equity in the house," but counsel did not provide a valuation for the 401(k) plan, the marital residence, or any other marital asset.
Even if counsel's unsworn statement about the value of the 401(k) plan could be considered as probative evidence, this statement is speculative. See Nat. Gas Pipeline Co. of Am. v. Justiss, 397 S.W.3d 150, 156 (Tex. 2012) ("[T]estimony is speculative if it is based on guesswork or conjecture."); Health Care Serv. Corp. v. E. Tex. Med. Ctr., 495 S.W.3d 333, 339 (Tex. App.-Tyler 2016, no pet.) ("Speculative testimony has no probative value. 'Speculate' means 'to take to be true on the basis of insufficient evidence.'") (internal citations omitted) (quoting Bd. of Trs. of Fire & Police Retiree Health Fund v. Towers, Perrin, Forster & Crosby, Inc., 191 S.W.3d 185, 194 (Tex. App.-San Antonio 2005, pet denied)). Counsel provided no basis or supporting documentation for his assertion about the value of the 401(k) plan. Counsel gave no indication of how long before trial "[s]everal years ago" was. In his statement, counsel assumed, without any stated basis, that the value of George's 401(k) plan increased between an undetermined point in time and trial in January 2022, and therefore the amount in that account would "balance the equity in the house," which Narcisa had valued in her inventory-again without supporting documentation-at $141,952.
Because the trial court had no evidence properly before it concerning the value of the parties' marital estate, we conclude that there is insufficient evidence in the record to support the court's property division. See Cohen, 569 S.W.3d at 775; Fuentes, 555 S.W.3d at 164-65; Sandone, 116 S.W.3d at 207-08. We therefore hold that error is apparent on the face of the record. See Watson v. Watson, 286 S.W.3d 519, 525 (Tex. App.-Fort Worth 2009, no pet.) (holding that because spouse presented no evidence concerning parties' marital assets and debts, trial court "lacked sufficient evidence upon which to exercise its discretion" in making property division, and this error was apparent on face of record). We sustain George's sole issue.
Conclusion
We affirm the portion of the trial court's judgment that dissolves the marriage between George and Narcisa. We reverse the portion of the trial court's judgment that divides the parties' community estate, and we remand that issue for a new trial.