                           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

                                    ----------

      Pro se Appellant Brandon Kyle Sherrill appeals from a final decree of

divorce. We will affirm.

      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




      1
       See Tex. R. App. P. 47.4.
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].” Toni did not file a brief.

       In three issues, Brandon argues that because there is no reporter’s record,

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

property awards and judgment. Brandon is correct that he may raise evidentiary

sufficiency issues even though he did not file an answer or make an appearance.

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, 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 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.

       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.

                                            2
      However, the problem with Brandon’s sufficiency issues is that there was

no reporter’s record made during the final divorce trial.4 In order to overcome the

presumption that the trial court correctly exercised its discretion in dividing

community property, the appellant bears the burden to show from the evidence in

the record that the division was so disproportionate as to constitute an abuse of

discretion. Finch v. Finch, 825 S.W.2d 218, 221 (Tex. App.—Houston [1st Dist.]

1992, no writ). Likewise, to show error in characterizing property as separate,

the appellant must demonstrate from the evidence at trial that the court’s finding

is not supported by clear and convincing evidence and that the error caused an

abuse of discretion. Viera v. Viera, 331 S.W.3d 195, 207 (Tex. App.—El Paso

2011, no pet.). Contrary to Brandon’s argument, in the absence of a reporter’s

record, we do not conclude that there is no evidence to support the judgment.

Instead, we must presume that the evidence is sufficient to support the

judgment.5 See Simon v. York Crane & Rigging Co., 739 S.W.2d 793, 795 (Tex.

1987); Emesowum v. Morgan, No. 14-13-00397-CV, 2014 WL 3587385, at *2

(Tex. App.—Houston [14th Dist.] July 22, 2014, pet. filed) (mem. op.) (“Because

      4
       The divorce decree states that a hearing took place on December 4,
2013, and that the “Court heard evidence.” Brandon does not contend that no
evidentiary hearing took place.
      5
       The caselaw that Brandon cites is inapposite because the appellate courts
in those cases had a reporter’s record. See Wolk v. Wolk, No. 03-06-00595-CV,
2007 WL 2682173, at *2‒3 (Tex. App.—Austin Sept. 12, 2007, no pet.) (mem.
op.); Odom v. Odom, No. 12-06-00218-CV, 2007 WL 677800, at *2 (Tex. App.—
Tyler Mar. 7, 2007, no pet.) (mem. op.); Suarez v. Suarez, No. 13-04-00108-CV,
2006 WL 1194960, at *2‒3 (Tex. App.—Corpus Christi May 4, 2006, no pet.)
(mem. op.).

                                        3
our appellate record contains no record of the trial proceedings, we presume that

the trial evidence was legally and factually sufficient to support the . . .

judgment . . . .”); Crown Asset Mgmt., LLC v. Burnett, No. 05-07-01186-CV, 2008

WL 3197098, at *2 (Tex. App.—Dallas Aug. 8, 2008, no pet.) (mem. op.) (“We

note at the outset that our record contains no reporter’s record. This can be

significant because without a reporter’s record we cannot reverse a judgment

based on arguments that depend on the evidence admitted at a hearing.”); Taylor

v. Am. Emery Wheel Works, 480 S.W.2d 26, 30 (Tex. App.—Corpus Christi

1972, no writ) (“There being no statement of facts . . . we do not know what

constituted the evidence, but inasmuch as the court’s judgment recites that

evidence was heard, we must presume that the evidence, whatever it might have

been, was sufficient to support the judgment of the trial court.”). There being no

reporter’s record to review for evidentiary sufficiency, we presume that the trial

court did not abuse its discretion in dividing the community estate and awarding

separate property.

      Citing family code section 6.711, Brandon appears to argue that he

suffered harm because the trial court did not make findings of fact and

conclusions of law. See Tex. Fam. Code Ann. § 6.711 (West 2006) (“In a suit for

dissolution of a marriage in which the court has rendered a judgment dividing the

estate of the parties, on request by a party, the court shall state in writing its

findings of fact and conclusions of law.”).    But Brandon cannot show harm

because even if the trial court had entered findings and conclusions, there is no


                                        4
reporter’s record, and we would presume that the findings are supported by the

trial court’s judgment. See In re Tyler, 408 S.W.3d 491, 495 (Tex. App.—El Paso

2013, no pet.). Brandon raises no questions of law.

      Accordingly, we overrule Brandon’s issues and affirm the trial court’s

judgment.



                                                 /s/ Bill Meier

                                                 BILL MEIER
                                                 JUSTICE

PANEL: GARDNER, WALKER, and MEIER, JJ.

DELIVERED: October 30, 2014




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