Opinion issued March 17, 2015
In The
Court of Appeals For The
First District of Texas ———————————— NO. 01-14-00071-CV ——————————— HECTOR COLMENERO, Appellant V. GABRIELA COLMENERO, Appellee
On Appeal from the 257th District Court Harris County, Texas Trial Court Case No. 2013-06265
MEMORANDUM OPINION
Appellant Hector Colmenero appeals from a default divorce judgment
rendered in favor of Appellee Gabriela Colmenero. In two issues, Hector contends
that (1) the trial court erred in denying his motion to set aside the default judgment
and for new trial, and (2) there was insufficient evidence to support the judgment awarding assets and child support to Gabriela. We conclude that the evidence is
insufficient to support the trial court’s “just and right” division of the community
estate and therefore reverse and remand for a new trial.
Background
Gabriela and Hector married in 2000 and had two children. Gabriela and
Hector separated in December 2009. In 2013, Gabriela filed for divorce, alleging
that the marriage had become insupportable.
Hector was served with process but never answered. On October 16, 2013,
the trial court conducted a trial in Hector’s absence. Gabriela offered no
documentary evidence and was the sole witness. According to Gabriela, she and
Hector purchased seven properties during their marriage—six in Mexico and one
in Houston, located at 2206 Richmond Avenue (“Houston property”). Gabriela
testified that the six properties in Mexico are in Hector’s name and that he
primarily lives in Mexico.
Gabriela testified that they purchased the Houston property in 2006 and that
there are two mortgages on the property, totaling $3,300. Gabriela also testified
that she and her children live in the Houston residence and that she has paid the
mortgage and utilities since she and Hector separated in 2009. Additionally, she
testified that she and Hector own a business, Mercado Mexico, that sold Mexican
crafts and goods, and that they ran the business out of their Houston property.
2 Gabriela did not testify regarding the value of the total community estate,
but with respect to the division of the marital estate, she testified:
Q: And are you requesting that that property at 2206 Richmond be awarded to you, along with the mortgage on that property?
A: Yes.
The questions continued in the same vein and Gabriela answered affirmatively to
questions that she requested the following:
• All household furnishings in her possession and that were in the Houston residence • All clothing, jewelry, and personal effects in her possession • All bank accounts in her name or subject to her sole control • A 2004 Ford Expedition • Mercado Mexico
Gabriela also answered affirmatively to questions that she requested that
Hector receive the following:
• All household furnishings, fixtures, and equipment in his possession • All clothing, jewelry, and personal effects in his possession • All bank accounts in his name or subject to his control • A 2001 Chevrolet pickup truck
When asked if she “believe[d] this property division is fair and equitable to
both [her] and [her] husband,” Gabriela responded, “Yes. I’m going to provide for
our daughter that way, from that.”
At the time of the hearing, one of the couple’s children was 19 years old and
the other child was 15 years old. With regard to their minor child, Gabriela
3 requested that the trial court declare she and Hector as Joint Managing
Conservators, but that she have the exclusive right to determine the primary
residence of the child and make decisions for the child. Gabriela also requested
$400 per month in child support and testified that she believed that was a
reasonable amount. She testified that Hector’s average monthly income varies
between $5,000 and $15,000 but that, on average, he earns $3,000 per month.
The day of the hearing, the trial court entered a final divorce decree,
containing a “Division of Marital Estate” subsection. In it, the trial court awarded
Gabriela and Hector their respective: (1) household furnishings and fixtures,
(2) clothing, jewelry, and other personal effects, and (3) all sums of cash in his or
her possession or subject to his or her control. The decree also awarded Gabriela
the Houston property, Mercado Mexico, and a 2004 Ford Expedition and Hector a
2001 Chevrolet pickup truck. Additionally, it ordered Hector to pay Gabriela $400
in monthly child support.
Hector concedes that he was served with process and failed to appear at the
October 16, 2013 hearing. However, on November 5, 2013, he filed a “motion to
set aside default judgment,” arguing that his failure to file an answer was the result
of accident and mistake. Hector failed to offer any evidence in support of his
motion. He asserted that after Gabriela filed for divorce, they continued living
together, which led Hector to believe that it was unnecessary to answer Gabriela’s
4 petition. Hector argued that he had the meritorious defenses of “in supportability
and fraud,” and that a new trial would not occasion delay or prejudice Gabriela
because they continued to live together. Additionally, Hector contended that the
division of property was not “just and equitable.”
The trial court conducted a hearing on the motion on December 19, 2013 at
which the trial court heard argument. The trial court heard no testimony, admitted
no evidence, and denied the motion that same day.
Approximately two weeks later, on January 3, 2014, Hector filed a “motion
to reconsider court’s order denying respondent’s motion to set aside default
judgment/motion for new trial,” asserting largely the same arguments as his
previous motion. But he asserted for the first time that (1) he had a meritorious
defense of adultery and (2) Gabriela committed fraud by failing to disclose the
value of the estate and that Mercado was Hector’s separate property. In support of
that motion, Hector offered an affidavit and Mercado Mexico’s certificate of
ownership. The trial court did not conduct a hearing on this motion or enter an
order denying it.
Discussion
In his second issue, Hector contends that the evidence is insufficient to
support the relief granted in the divorce decree. Specifically, he contends that the
trial court mischaracterized Mercado Mexico as community property and that the
5 evidence is insufficient to support the trial court’s division of community property
and award of child support.
A. Applicable Law and Standard of Review
Texas Family Code section 6.701 provides: “In a suit for divorce, the
petition may not be taken as confessed if the respondent does not file an answer.”
TEX. FAM. CODE ANN. § 6.701 (West 2006). Therefore, when the respondent fails
to file an answer, the petitioner must adduce proof to support the material
allegations in the petition. In re E.M.V., 312 S.W.3d 288, 291 (Tex. App.—Dallas
2010, no pet.) (citing Osteen v. Osteen, 38 S.W.3d 288, 813 (Tex. App.—Houston
[14th Dist.] 2001, no pet.); Considine v. Considine, 726 S.W.2d 253, 254 (Tex.
App.—Austin 1987, no writ)).
Under section 7.001 of the Texas Family Code, the trial court must divide
community property in a “just and right” manner. TEX. FAM. CODE ANN.
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Opinion issued March 17, 2015
In The
Court of Appeals For The
First District of Texas ———————————— NO. 01-14-00071-CV ——————————— HECTOR COLMENERO, Appellant V. GABRIELA COLMENERO, Appellee
On Appeal from the 257th District Court Harris County, Texas Trial Court Case No. 2013-06265
MEMORANDUM OPINION
Appellant Hector Colmenero appeals from a default divorce judgment
rendered in favor of Appellee Gabriela Colmenero. In two issues, Hector contends
that (1) the trial court erred in denying his motion to set aside the default judgment
and for new trial, and (2) there was insufficient evidence to support the judgment awarding assets and child support to Gabriela. We conclude that the evidence is
insufficient to support the trial court’s “just and right” division of the community
estate and therefore reverse and remand for a new trial.
Background
Gabriela and Hector married in 2000 and had two children. Gabriela and
Hector separated in December 2009. In 2013, Gabriela filed for divorce, alleging
that the marriage had become insupportable.
Hector was served with process but never answered. On October 16, 2013,
the trial court conducted a trial in Hector’s absence. Gabriela offered no
documentary evidence and was the sole witness. According to Gabriela, she and
Hector purchased seven properties during their marriage—six in Mexico and one
in Houston, located at 2206 Richmond Avenue (“Houston property”). Gabriela
testified that the six properties in Mexico are in Hector’s name and that he
primarily lives in Mexico.
Gabriela testified that they purchased the Houston property in 2006 and that
there are two mortgages on the property, totaling $3,300. Gabriela also testified
that she and her children live in the Houston residence and that she has paid the
mortgage and utilities since she and Hector separated in 2009. Additionally, she
testified that she and Hector own a business, Mercado Mexico, that sold Mexican
crafts and goods, and that they ran the business out of their Houston property.
2 Gabriela did not testify regarding the value of the total community estate,
but with respect to the division of the marital estate, she testified:
Q: And are you requesting that that property at 2206 Richmond be awarded to you, along with the mortgage on that property?
A: Yes.
The questions continued in the same vein and Gabriela answered affirmatively to
questions that she requested the following:
• All household furnishings in her possession and that were in the Houston residence • All clothing, jewelry, and personal effects in her possession • All bank accounts in her name or subject to her sole control • A 2004 Ford Expedition • Mercado Mexico
Gabriela also answered affirmatively to questions that she requested that
Hector receive the following:
• All household furnishings, fixtures, and equipment in his possession • All clothing, jewelry, and personal effects in his possession • All bank accounts in his name or subject to his control • A 2001 Chevrolet pickup truck
When asked if she “believe[d] this property division is fair and equitable to
both [her] and [her] husband,” Gabriela responded, “Yes. I’m going to provide for
our daughter that way, from that.”
At the time of the hearing, one of the couple’s children was 19 years old and
the other child was 15 years old. With regard to their minor child, Gabriela
3 requested that the trial court declare she and Hector as Joint Managing
Conservators, but that she have the exclusive right to determine the primary
residence of the child and make decisions for the child. Gabriela also requested
$400 per month in child support and testified that she believed that was a
reasonable amount. She testified that Hector’s average monthly income varies
between $5,000 and $15,000 but that, on average, he earns $3,000 per month.
The day of the hearing, the trial court entered a final divorce decree,
containing a “Division of Marital Estate” subsection. In it, the trial court awarded
Gabriela and Hector their respective: (1) household furnishings and fixtures,
(2) clothing, jewelry, and other personal effects, and (3) all sums of cash in his or
her possession or subject to his or her control. The decree also awarded Gabriela
the Houston property, Mercado Mexico, and a 2004 Ford Expedition and Hector a
2001 Chevrolet pickup truck. Additionally, it ordered Hector to pay Gabriela $400
in monthly child support.
Hector concedes that he was served with process and failed to appear at the
October 16, 2013 hearing. However, on November 5, 2013, he filed a “motion to
set aside default judgment,” arguing that his failure to file an answer was the result
of accident and mistake. Hector failed to offer any evidence in support of his
motion. He asserted that after Gabriela filed for divorce, they continued living
together, which led Hector to believe that it was unnecessary to answer Gabriela’s
4 petition. Hector argued that he had the meritorious defenses of “in supportability
and fraud,” and that a new trial would not occasion delay or prejudice Gabriela
because they continued to live together. Additionally, Hector contended that the
division of property was not “just and equitable.”
The trial court conducted a hearing on the motion on December 19, 2013 at
which the trial court heard argument. The trial court heard no testimony, admitted
no evidence, and denied the motion that same day.
Approximately two weeks later, on January 3, 2014, Hector filed a “motion
to reconsider court’s order denying respondent’s motion to set aside default
judgment/motion for new trial,” asserting largely the same arguments as his
previous motion. But he asserted for the first time that (1) he had a meritorious
defense of adultery and (2) Gabriela committed fraud by failing to disclose the
value of the estate and that Mercado was Hector’s separate property. In support of
that motion, Hector offered an affidavit and Mercado Mexico’s certificate of
ownership. The trial court did not conduct a hearing on this motion or enter an
order denying it.
Discussion
In his second issue, Hector contends that the evidence is insufficient to
support the relief granted in the divorce decree. Specifically, he contends that the
trial court mischaracterized Mercado Mexico as community property and that the
5 evidence is insufficient to support the trial court’s division of community property
and award of child support.
A. Applicable Law and Standard of Review
Texas Family Code section 6.701 provides: “In a suit for divorce, the
petition may not be taken as confessed if the respondent does not file an answer.”
TEX. FAM. CODE ANN. § 6.701 (West 2006). Therefore, when the respondent fails
to file an answer, the petitioner must adduce proof to support the material
allegations in the petition. In re E.M.V., 312 S.W.3d 288, 291 (Tex. App.—Dallas
2010, no pet.) (citing Osteen v. Osteen, 38 S.W.3d 288, 813 (Tex. App.—Houston
[14th Dist.] 2001, no pet.); Considine v. Considine, 726 S.W.2d 253, 254 (Tex.
App.—Austin 1987, no writ)).
Under section 7.001 of the Texas Family Code, the trial court must divide
community property in a “just and right” manner. TEX. FAM. CODE ANN. § 7.001
(West 2006). It is well established that a trial court has wide discretion in ordering
a property division. Bell v. Bell, 513 S.W.2d 20, 22 (Tex. 1974). The division of
property need not be equal and it is presumed that the trial court properly exercised
its discretion in determining the value and division of marital property. Id. We
review an alleged error in dividing marital property for an abuse of that discretion.
Id.
6 In family law cases, legal and factual sufficiency challenges do not
constitute independent grounds for asserting error, but are relevant factors in
determining whether the trial court abused its discretion. See Beaumont Bank v.
Buller, 806 S.W.2d 223, 226 (Tex.1991); Moore v. Moore, 383 S.W.3d 190, 198
(Tex. App.—Dallas 2012, pet. denied). To determine whether a trial court abused
its discretion because the evidence is legally or factually insufficient to support its
decision, we consider whether the trial court (1) had sufficient evidence upon
which to exercise its discretion and (2) erred in its application of that discretion.
Moroch v. Collins, 174 S.W.3d 849, 857 (Tex. App.—Dallas 2005, pet. denied).
We conduct the applicable sufficiency review when considering the first prong of
the test. Id. We then determine whether, based on the evidence, the trial court
made a reasonable decision. Id. If the division of marital property lacks sufficient
evidence in the record to support it, then the trial court’s division is an abuse of
discretion. Wilson v. Wilson, 132 S.W.3d 533, 537 (Tex. App.—Houston [1st
Dist.] 2004, pet. denied) (citing Sandone v. Miller–Sandone, 116 S.W.3d 204, 208
(Tex. App.—El Paso 2003, no pet.) (holding that trial court abused its discretion in
dividing property because there was no evidence of community estate’s value);
Mai v. Mai, 853 S.W.2d 615, 618 (Tex. App.—Houston [1st Dist.] 1993, no writ)
(legal and factual sufficiency are relevant factors in assessing whether trial court
abused its discretion)).
7 B. Analysis
1. Division of the marital estate
Hector contends that there was insufficient evidence to support the trial
court’s division of the marital estate. We agree.
The record must contain sufficient evidence to support the trial court’s
division of the marital estate. Wilson, 132 S.W.3d at 537. Here, there is nothing in
the record demonstrating the value of the community estate. Notably, Gabriela
failed to identify the value of the community estate in her testimony. She never
defined the assets of the community estate, nor described them with any
particularity. She also failed to identify the value of the Houston property and
Mercado Mexico. While Gabriela requested the division of property reflected in
the decree, there is no evidence of the value of the community estate or of any of
its component parts upon which the trial court could have concluded that the
decree’s division of the community estate was just and right. See Barry v. Barry,
193 S.W.3d 72, 75–76 (Tex. App.—Houston [1st Dist.] 2006, no pet.) (insufficient
evidence to support “just and right” division of property because petitioner’s
“testimony at trial only showed that she requested the division of property as it was
given”); Wilson, 132 S.W.3d at 538 (“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, 116 S.W.3d at 207–08
8 (“Without the ability to determine the size of the community pie, we can make no
determination that the slices awarded to each spouse was just and right.”).
Accordingly, we conclude that there is insufficient evidence to support the trial
court’s division of the assets and that the trial court abused its discretion in
dividing the marital estate as it did. See In re E.M.V., 312 S.W.3d at 291 (trial
court abused its discretion in division of property because there was “insufficient
evidence to divide the property fairly and equitably”); Sandone, 116 S.W.3d at
207–08 (trial court abused its discretion in division of property where there was no
evidence showing value of community estate).
2. Child support
Hector also contends that there was insufficient evidence to support the $400
monthly child support award. Having concluded that insufficient evidence
supports the division of the community estate, we reverse and remand the child
support determination because it may be “materially influenced” by the property
division. See Vasquez v. Vasquez, 292 S.W.3d 80, 86 (Tex. App.—Houston [14th
Dist.] 2007, no pet.) (remanding child support after holding there was insufficient
evidence to support division of marital estate because “such a claim may be
‘materially influenced’ by the property division”); Wilson, 132 S.W.3d at 539
(same).
9 We sustain Hector’s second issue. Having concluded that the trial court
erred in dividing the community estate and that a remand and new trial are needed,
we need not address Hector’s first issue regarding whether the trial court erred in
denying his motions to set aside the default judgment and for new trial as its
resolution would not result in greater relief to Hector. See TEX. R. APP. P. 47.1
(court of appeals need only address issues raised and necessary to disposition of
appeal); State v. Ninety Thousand Two Hundred Thirty-Five Dollars and No Cents
in U.S. Currency ($90,235), 390 S.W.3d 289, 294 (Tex. 2013) (same).
Conclusion
We reverse the portion of the trial court’s decree of divorce dividing the
community estate of the parties and the child support award and remand for a new
trial on those issues consistent with this opinion. In all other respects, we affirm
the trial court’s decree.
Rebeca Huddle Justice
Panel consists of Justices Jennings, Higley, and Huddle.