TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-23-00275-CV
Courtney Janish, Appellant
v.
Joseph Janish, Appellee
FROM THE 155TH DISTRICT COURT OF FAYETTE COUNTY NO. 2022V-194, THE HONORABLE JEFF R. STEINHAUSER, JUDGE PRESIDING
M E M O RAN D U M O PI N I O N
Joseph Janish filed for divorce from his wife, Courtney Janish. 1 Courtney did not
file an answer, nor did she appear at trial. After the trial, at which Joseph was the only witness,
the trial court granted the divorce, awarded divided custody of their two children, divided the
parties’ assets unequally, and ordered that neither party pay any child support. Within six months
after the divorce decree was signed, Courtney filed a restricted appeal challenging the trial court’s
judgment on several grounds. We will reverse the judgment and remand the case to the trial court
for a new trial.
1 Because the parties share the same surname, we will, for clarity, refer to them by their given names. FACTUAL AND PROCEDURAL BACKGROUND
Joseph and Courtney married in 2016. At the time of trial they had two minor
children, a girl and a boy. Joseph testified that the parties’ assets included their house, another
piece of real property, at least one business, two cars, and a bank account balance. Apparently
some of these assets were separate property and some were community property, although the
evidence was not completely clear about the specifics of that. Joseph and Courtney separated in
approximately December 2021.
Joseph filed a petition for divorce in the District Court of Fayette County. The
petition alleged as grounds for the divorce that the marriage had become insupportable and that
Courtney had committed adultery. Courtney did not file an answer.
Trial was to the court. Although she had been notified of the trial, Courtney did not
appear. Joseph was the only witness, and no exhibits were offered or admitted into evidence.
Following the trial, the trial court signed a judgment that:
1. granted the divorce “on the grounds of insupportability and on the grounds of Respondent committing adultery”;
2. divided the parties’ assets unequally;
3. ordered a “split conservatorship” of the two children, granting Joseph primary custody of the son and the exclusive right to designate the son’s primary residence and granting Courtney primary custody of the daughter and the exclusive right to designate the daughter’s primary residence; and
4. awarded no child support.
Courtney did not file any post-judgment motions or requests but filed a notice of restricted appeal
less than six month after the judgment was signed. In this appeal, Courtney raises several issues.
2 We will address only the first two: sufficiency of the evidence to support divorce on the grounds
of insupportability and adultery.
DISCUSSION
To prevail in a restricted appeal,
the filing party must prove: (1) she filed notice of the restricted appeal within six months after the judgment was signed; (2) she was a party to the underlying lawsuit; (3) she did not participate in the hearing that resulted in the judgment complained of, and 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 v. Grant, 447 S.W.3d 884, 886 (Tex. 2014); see also Tex. R. App. P. 30. The first three
requirements are jurisdictional; the fourth is not. Ex parte E.H., 602 S.W.3d 486, 495–97
(Tex. 2020).
Here, the record contains undisputed proof of the first three elements necessary for
a restricted appeal. Only the fourth element—error on the face of the record—is at issue.
Error on the Face of the Record
In a standard no-answer default judgment, “the failure to file an answer operates as
an admission of the material facts alleged in the petition, except as to unliquidated damages.”
Gotch v. Gotch, 416 S.W.3d 633, 637 (Tex. App.—Houston [14th Dist.] 2013, no pet.). This rule
does not apply, however, in a suit for divorce: “In a suit for divorce, the petition may not be taken
as confessed if the respondent does not file an answer.” Tex. Fam. Code § 6.701; see Gonzalez
v. Gonzalez, 679 S.W.3d 221, 226 (Tex. App.—Houston [1st Dist.] 2023, no pet.) (“When a divorce
defendant defaults, the petitioner must still present evidence to support the material allegations in
the divorce petition.”). Accordingly, Joseph was obligated to produce evidence of the grounds for
divorce that he alleged.
3 Joseph’s petition pleaded two bases for the divorce: insupportability and adultery.
As for insupportability, the Texas Family Code provides: “On the petition of either party to a
marriage, the court may grant a divorce without regard to fault if the marriage has become
insupportable because of discord or conflict of personalities that destroys the legitimate ends of
the marital relationship and prevents any reasonable expectation of reconciliation.” Tex. Fam.
Code § 6.001. As for adultery, the Family Code states: “The court may grant a divorce in favor
of one spouse if the other spouse has committed adultery.” Id. § 6.003. We will examine the record
for evidence supporting those allegations.
I. Insupportability
The only evidence that relates to insupportability comes from the following
exchange between Joseph and his attorney:
Q (by Joseph’s attorney). And do you agree that there is no possibility of being able to put your marriage back together?
A (by Joseph). No.
Q. And do you agree that you’ve tried?
A. Yes.
The only relevant question is the first one. Because that question was framed in the negative, it is
possible Joseph misunderstood it. But we cannot assume that, nor can we speculate that he might
have intended a meaning different from the words he actually spoke. As worded, the question
asked if Joseph agreed that there was no possibility the marriage could be saved. In other words,
Joseph was asked if he agreed the marriage had become insupportable. By answering “no” without
4 further explanation, Joseph was stating that he did not believe the marriage had become
insupportable. 2 That does not constitute evidence of insupportability.
II. Adultery
“A party may prove adultery by direct or circumstantial evidence; however, the
proof must be ‘clear and positive[,]’ and ‘mere suggestion and innuendo are insufficient.’”
Escalante v. Escalante, 632 S.W.3d 573, 579 (Tex. App.—El Paso 2020, no pet.) (quoting Gerges
v. Gerges, 601 S.W.3d 46, 64 (Tex. App.—El Paso 2020, no pet.)); see also In re Marriage of
Hottinger, No. 07-20-00211-CV, 2021 WL 4453668, at *2 (Tex. App.—Amarillo Sept. 29, 2021,
no pet.) (mem. op.).
In the present case, the only testimony that mentioned adultery at all was in the
following exchange between Joseph and his attorney:
Q. Okay. Unfortunately, do you agree that you have pled for grounds -- multiple grounds, more than just insupportability in this case?
Q. In terms of cruelty and adultery?
There was no further evidence regarding adultery.
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TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-23-00275-CV
Courtney Janish, Appellant
v.
Joseph Janish, Appellee
FROM THE 155TH DISTRICT COURT OF FAYETTE COUNTY NO. 2022V-194, THE HONORABLE JEFF R. STEINHAUSER, JUDGE PRESIDING
M E M O RAN D U M O PI N I O N
Joseph Janish filed for divorce from his wife, Courtney Janish. 1 Courtney did not
file an answer, nor did she appear at trial. After the trial, at which Joseph was the only witness,
the trial court granted the divorce, awarded divided custody of their two children, divided the
parties’ assets unequally, and ordered that neither party pay any child support. Within six months
after the divorce decree was signed, Courtney filed a restricted appeal challenging the trial court’s
judgment on several grounds. We will reverse the judgment and remand the case to the trial court
for a new trial.
1 Because the parties share the same surname, we will, for clarity, refer to them by their given names. FACTUAL AND PROCEDURAL BACKGROUND
Joseph and Courtney married in 2016. At the time of trial they had two minor
children, a girl and a boy. Joseph testified that the parties’ assets included their house, another
piece of real property, at least one business, two cars, and a bank account balance. Apparently
some of these assets were separate property and some were community property, although the
evidence was not completely clear about the specifics of that. Joseph and Courtney separated in
approximately December 2021.
Joseph filed a petition for divorce in the District Court of Fayette County. The
petition alleged as grounds for the divorce that the marriage had become insupportable and that
Courtney had committed adultery. Courtney did not file an answer.
Trial was to the court. Although she had been notified of the trial, Courtney did not
appear. Joseph was the only witness, and no exhibits were offered or admitted into evidence.
Following the trial, the trial court signed a judgment that:
1. granted the divorce “on the grounds of insupportability and on the grounds of Respondent committing adultery”;
2. divided the parties’ assets unequally;
3. ordered a “split conservatorship” of the two children, granting Joseph primary custody of the son and the exclusive right to designate the son’s primary residence and granting Courtney primary custody of the daughter and the exclusive right to designate the daughter’s primary residence; and
4. awarded no child support.
Courtney did not file any post-judgment motions or requests but filed a notice of restricted appeal
less than six month after the judgment was signed. In this appeal, Courtney raises several issues.
2 We will address only the first two: sufficiency of the evidence to support divorce on the grounds
of insupportability and adultery.
DISCUSSION
To prevail in a restricted appeal,
the filing party must prove: (1) she filed notice of the restricted appeal within six months after the judgment was signed; (2) she was a party to the underlying lawsuit; (3) she did not participate in the hearing that resulted in the judgment complained of, and 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 v. Grant, 447 S.W.3d 884, 886 (Tex. 2014); see also Tex. R. App. P. 30. The first three
requirements are jurisdictional; the fourth is not. Ex parte E.H., 602 S.W.3d 486, 495–97
(Tex. 2020).
Here, the record contains undisputed proof of the first three elements necessary for
a restricted appeal. Only the fourth element—error on the face of the record—is at issue.
Error on the Face of the Record
In a standard no-answer default judgment, “the failure to file an answer operates as
an admission of the material facts alleged in the petition, except as to unliquidated damages.”
Gotch v. Gotch, 416 S.W.3d 633, 637 (Tex. App.—Houston [14th Dist.] 2013, no pet.). This rule
does not apply, however, in a suit for divorce: “In a suit for divorce, the petition may not be taken
as confessed if the respondent does not file an answer.” Tex. Fam. Code § 6.701; see Gonzalez
v. Gonzalez, 679 S.W.3d 221, 226 (Tex. App.—Houston [1st Dist.] 2023, no pet.) (“When a divorce
defendant defaults, the petitioner must still present evidence to support the material allegations in
the divorce petition.”). Accordingly, Joseph was obligated to produce evidence of the grounds for
divorce that he alleged.
3 Joseph’s petition pleaded two bases for the divorce: insupportability and adultery.
As for insupportability, the Texas Family Code provides: “On the petition of either party to a
marriage, the court may grant a divorce without regard to fault if the marriage has become
insupportable because of discord or conflict of personalities that destroys the legitimate ends of
the marital relationship and prevents any reasonable expectation of reconciliation.” Tex. Fam.
Code § 6.001. As for adultery, the Family Code states: “The court may grant a divorce in favor
of one spouse if the other spouse has committed adultery.” Id. § 6.003. We will examine the record
for evidence supporting those allegations.
I. Insupportability
The only evidence that relates to insupportability comes from the following
exchange between Joseph and his attorney:
Q (by Joseph’s attorney). And do you agree that there is no possibility of being able to put your marriage back together?
A (by Joseph). No.
Q. And do you agree that you’ve tried?
A. Yes.
The only relevant question is the first one. Because that question was framed in the negative, it is
possible Joseph misunderstood it. But we cannot assume that, nor can we speculate that he might
have intended a meaning different from the words he actually spoke. As worded, the question
asked if Joseph agreed that there was no possibility the marriage could be saved. In other words,
Joseph was asked if he agreed the marriage had become insupportable. By answering “no” without
4 further explanation, Joseph was stating that he did not believe the marriage had become
insupportable. 2 That does not constitute evidence of insupportability.
II. Adultery
“A party may prove adultery by direct or circumstantial evidence; however, the
proof must be ‘clear and positive[,]’ and ‘mere suggestion and innuendo are insufficient.’”
Escalante v. Escalante, 632 S.W.3d 573, 579 (Tex. App.—El Paso 2020, no pet.) (quoting Gerges
v. Gerges, 601 S.W.3d 46, 64 (Tex. App.—El Paso 2020, no pet.)); see also In re Marriage of
Hottinger, No. 07-20-00211-CV, 2021 WL 4453668, at *2 (Tex. App.—Amarillo Sept. 29, 2021,
no pet.) (mem. op.).
In the present case, the only testimony that mentioned adultery at all was in the
following exchange between Joseph and his attorney:
Q. Okay. Unfortunately, do you agree that you have pled for grounds -- multiple grounds, more than just insupportability in this case?
Q. In terms of cruelty and adultery?
There was no further evidence regarding adultery.
2 Shortly after the quoted exchange, Joseph’s attorney asked him another question that was framed in the negative: Q. So do you agree it’s not a standard visitation schedule? A. Yes. By answering “yes” to that question, Joseph demonstrated that he understood how to answer a question that was framed in the negative. 5 Pleadings are generally not evidence. Hidalgo v. Surety Sav. & Loan Ass’n,
462 S.W.2d 540, 545 (Tex. 1971); see also American Citigroup Real Est. Inc. v. Texas Elec.
Residential Contractors, LLC, No. 14-23-00822-CV, 2024 WL 5252060, at *4 (Tex. App.—
Houston [14th Dist.] Dec. 31, 2024, no pet. h.) (mem. op.). Accordingly, the foregoing testimony
does not constitute any evidence of adultery.
“In family law cases, the traditional sufficiency standard of review overlaps with
the abuse of discretion standard of review; therefore, legal and factual insufficiency are not
independent grounds of error but are relevant factors in [an appellate court’s] assessment of
whether the trial court abused its discretion.” In re J.Y.O., No. 22-0787, 2024 WL 5250363, at *9
n.92 (Tex. Dec. 31, 2024) (quoting with approval In re J.Y.O., 684 S.W.3d 796, 802 (Tex. App.—
Dallas 2022), aff’d in part, rev’d in part, No. 22-0787, 2024 WL 5250363 (Tex. Dec. 31, 2024)).
The record in the present case contains no evidence of the two grounds for divorce
Joseph pleaded. Accordingly, the trial court abused its discretion in granting the divorce. See, e.g.,
Steele v. Steele, No. 03-07-00011-CV, 2009 WL 2567911, at *5 (Tex. App.—Austin Aug. 19, 2009,
no pet.) (mem. op.) (“[B]ecause Juarez presented no evidence concerning conservatorship, child
support, the parties’ marital assets and debts, or attorney’s fees, the trial court lacked sufficient
evidence upon which to exercise its discretion with regard to these matters.”). This error is
apparent on the face of the record.
We sustain Courtney’s first two appellate issues. As a result, we need not address
her other issues.
6 CONCLUSION
Having concluded that the trial court abused its discretion in granting the divorce,
we reverse the court’s judgment and remand the case to that court for a new trial.
__________________________________________ J. Woodfin Jones, Justice
Before Justices Kelly, Theofanis, and Jones*
Reversed and Remanded
Filed: February 14, 2025
*Before J. Woodfin Jones, Chief Justice (Retired), Third Court of Appeals, sitting by assignment. See Tex. Gov’t Code § 74.003(b).