                              COURT OF APPEALS
                              SECOND DISTRICT OF TEXAS
                                   FORT WORTH

                                 NO. 02-14-00077-CV


BRANDON KYLE SHERRILL                                                APPELLANT

                                          V.

TONI ANN SHERRILL                                                      APPELLEE


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          FROM THE 233RD DISTRICT COURT OF TARRANT COUNTY
                     TRIAL COURT NO. 233-542854-13

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               MEMORANDUM OPINION1 ON REHEARING

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      On October 30, 2014, this court issued an opinion affirming the trial court’s

judgment.    Pro Se Appellant Brandon Kyle Sherrill then filed a motion for

rehearing. After due consideration, we grant Brandon’s motion for rehearing,

withdraw our prior opinion and judgment dated October 30, 2014, and substitute

the following in its place.


      1
       See Tex. R. App. P. 47.4.
       Brandon appeals from a final decree of divorce. In three issues, he argues

that the evidence is legally and factually insufficient to support the trial court’s

property awards and judgment. We will reverse and remand for a new trial on

the division of property.

       In August 2013, Appellee Toni Ann Sherrill filed a petition to divorce

Brandon. Although we can gather from the record that he was served, Brandon

did not file an answer, nor did he appear at the final trial in December 2013.2 The

trial court signed a final decree of divorce that divided the community estate,

confirmed Toni’s and Brandon’s separate property, and ordered them divorced.3

Brandon timely requested that the trial court issue findings of fact and

conclusions of law, but the court never did so. Thereafter, Brandon perfected

this appeal. Before the cause was submitted, the court reporter assigned to the

trial court notified this court that she “did not make a Reporter’s Record in this

case [on the day of the final trial].”4 Toni did not file a brief.

       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).

If the respondent fails to answer or appear, the petitioner must present evidence

to support the material allegations in the petition. Gonzalez v. Gonzalez, 331
       2
       In his statement of facts, Brandon asserts that he did not receive notice of
the final trial, but he does not assign any error, nor include any argument,
regarding the contention.
       3
       There were no children of the marriage.
       4
       The court reporter also stated in her letter that Brandon had requested a
reporter’s record.

                                            2
S.W.3d 864, 866 (Tex. App.—Dallas 2011, no pet.). Consequently, a default

judgment of divorce is subject to an evidentiary attack on appeal. Id.

      Ordinarily, without a reporter’s record, we must presume that the evidence

is sufficient to support the trial court’s judgment. See Simon v. York Crane &

Rigging Co., Inc., 739 S.W.2d 793, 795 (Tex. 1987). But this presumption does

not apply on direct review of a default judgment where no reporter’s record was

made through no fault of the appellant. See Tex. Crushed Stone Co. v. Baker,

576 S.W.2d 894, 896 (Tex. Civ. App.—Tyler 1979, no writ); Bain v. Bain, No. 02-

06-00215-CV, 2007 WL 174463, at *3 (Tex. App.—Fort Worth Jan. 25, 2007, no

pet.) (mem. op.) (noting also that rule of appellate procedure 13.1 requires the

court reporter to attend and make a full record of the proceedings unless

excused by agreement of the parties). If a party exercises due diligence and

through no fault of his own is unable to obtain a record of the evidence adduced

at the hearing for a default judgment, a new trial may be required in order to

preserve his right to appellate review. Rogers v. Rogers, 561 S.W.2d 172, 173–

74 (Tex. 1978); Robinson v. Robinson, 487 S.W.2d 713, 715 (Tex. 1972).

      Here, Brandon requested a reporter’s record of the trial court’s evidentiary

hearing resulting in the no-answer default judgment against him, and the official

court reporter notified him and us that she did not make one.            Because no

reporter’s record was taken, error is apparent on the face of the record.5 See


      5
       Had this divorce suit involved children to the marriage and adjudicated
issues of paternity, custody, or child support, we would rely on section 105.003 of
the family code to reach the same result. That section requires that, in suits
                                          3
Rogers, 561 S.W.2d at 173–74; Robinson, 487 S.W.2d at 715; see also Stone v.

Talbert Operations, LLC, No. 04-14-00008-CV, 2014 WL 7439931, at *2 (Tex.

App.—San Antonio Dec. 31, 2014, no. pet. h.); Thompson v. Thompson, No. 02-

13-00292-CV, 2014 WL 3865951, at *1 (Tex. App.—Fort Worth Aug. 7, 2014, no

pet.); Bain, 2007 WL 174463, at *3.

      Without a record of the default judgment hearing, Brandon’s right to proper

appellate review, due to no fault on his part, can be preserved only by a new trial.

See Rogers, 561 S.W.2d at 173–74. Therefore, we sustain Brandon’s three

issues. Brandon challenges only the sufficiency of the evidence to support the

property division and prays that we affirm the trial court’s judgment granting the

divorce. Thus, we reverse the trial court’s judgment on the division of property

and remand the case for a new trial on the division of property. We affirm the

trial court’s judgment in all other respects.

                                                   /s/ Sue Walker
                                                   SUE WALKER
                                                   JUSTICE

PANEL: GARDNER, WALKER, and MEIER, JJ.



affecting the parent-child relationship, a record be made “as in civil cases
generally unless waived by the parties with the consent of the trial court.” Tex.
Fam. Code Ann. § 105.003(c) (West 2014); Stubbs v. Stubbs, 685 S.W.2d 643,
645 (Tex. 1985). Brandon did not waive a record in this case. Nor did Brandon
have an opportunity to object to the court reporter’s failure to record the
proceedings because he did not appear at the hearing. See Tex. R. App. P.
13.1(c); cf. Kohler v. M & M Truck Conversions, No. 02-08-00332-CV, 2009 WL
2579639, at *1 (Tex. App.—Fort Worth Aug. 21, 2009, no pet.) (mem. op.).



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DELIVERED: February 12, 2015




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