                              Fourth Court of Appeals
                                    San Antonio, Texas
                                MEMORANDUM OPINION

                                        No. 04-19-00451-CV

                                      Ceila Beatriz GARCIA,
                                             Appellant

                                                 v.

                                  Michael Anthony BENAVIDES,
                                             Appellee

                     From the 38th Judicial District Court, Uvalde County, Texas
                                Trial Court No. 2018-09-32349-CV
                               Honorable Ron Carr, Judge Presiding

Opinion by:       Sandee Bryan Marion, Chief Justice

Sitting:          Sandee Bryan Marion, Chief Justice
                  Patricia O. Alvarez, Justice
                  Beth Watkins, Justice

Delivered and Filed: January 15, 2020

REVERSED IN PART, AFFIRMED IN PART, AND REMANDED

           Appellant Ceila Beatriz Garcia (“Garcia”) appeals from a default decree of divorce.

Because we conclude the trial court’s determinations regarding conservatorship, possession and

access, and child support are not supported by the pleadings or the evidence, we reverse the

judgment in part as to those issues and remand to the trial court for proceedings consistent with

this opinion. Because Garcia does not challenge the default decree of divorce to the extent it grants

the parties a divorce and makes a division of property and debts, we affirm the judgment in all

other respects.
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                                            Background

       Garcia and appellee Michael Anthony Benavides (“Benavides”) were married in 2017 and

have one child together. Benavides filed a pro se petition for divorce in Uvalde County in

September 2018. The clerk’s record contains a sheriff’s return of citation reflecting that Garcia

was personally served with the original petition on September 10, 2018. The record, however, does

not reflect that Garcia filed an answer. On March 22, 2019, after conducting an evidentiary hearing

at which Benavides was represented by counsel, the trial court entered a default decree of divorce,

stating that Garcia, “although duly and properly cited, did not appear and wholly made default.”

The default decree names Benavides and Garcia joint managing conservators of their child with

Benavides having the exclusive right to designate the child’s primary residence. The default decree

also orders Garcia to pay Benavides child support in the amount of $400 per month. Garcia appeals.

                                             Discussion

       Although Garcia timely filed a motion for new trial, she does not challenge the trial court’s

order denying it. Rather, in three issues, Garcia argues the trial court abused its discretion because:

(1) the default decree grants relief not pleaded for in the original petition, (2) the evidence is

insufficient to support the determination of conservatorship and possession and access, and (3) the

evidence is insufficient to support the child support award.

A.     Waiver

       As an initial matter, Benavides argues Garcia waived her first and third issues by failing to

raise them in her motion for new trial. A default divorce decree must be supported by the pleadings.

Lynch v. Lynch, 540 S.W.3d 107, 134–35 (Tex. App.—Houston [1st Dist.] 2017, pet. denied)

(citing TEX. R. CIV. P. 301; Stoner v. Thompson, 578 S.W.2d 679, 682 (Tex. 1979)). “‘This rule is

a specific application of the more general principle that a party may not be granted relief in the

absence of pleadings to support that relief, unless the request for relief is tried by consent—a


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situation that cannot occur in the context of a default judgment.’” Id. (quoting In re Marriage of

Day, 497 S.W.3d 87, 90 (Tex. App.—Houston [14th Dist.] 2016, pet. denied)). Therefore, a

challenge to the sufficiency of the pleadings may be raised for the first time on appeal. See Day,

497 S.W.3d at 90.

       Further, although no evidence is generally required to support a default judgment, the

general rule is limited in the divorce context by section 6.701 of the Family Code, which 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; accord Agraz v. Carnley, 143 S.W.3d 547, 552 (Tex.

App.—Dallas 2004, no pet.); Osteen v. Osteen, 38 S.W.3d 809, 814 (Tex. App.—Houston [14th

Dist.] 2001, no pet.). In a divorce case, a petitioner is required to prove up the material allegations

in the petition in order to obtain a default divorce, and a respondent may raise evidentiary

challenges for the first time on appeal. Agraz, 143 S.W.3d at 552; Osteen, 38 S.W.3d at 814.

       Here, because Garcia’s challenges to the default decree may be raised for the first time on

appeal, we conclude she has not waived them and turn to the merits.

B.     Standard of review and analysis

       We review a trial court’s decisions pertaining to conservatorship, possession and access,

and child support for abuse of discretion. In re T.K.D.-H., 439 S.W.3d 473, 481 (Tex. App.—San

Antonio 2014, no pet.). The trial court abuses its discretion by awarding relief not supported by

the pleadings or by rendering a decision without sufficient supporting evidence. Id.; Day, 497

S.W.3d at 89.

       In this case, Benavides filed the original petition pro se using an internet form. Although

the petition identifies the child of the marriage and requests “Legal Custody . . . if and when

[Garcia] decides to cross to Mexico,” it does not specifically plead for joint conservatorship or for

child support. Benavides did not amend the original petition or file any additional pleadings prior


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to the final hearing. At the final hearing, Benavides did not request child support or offer any

evidence in support of a child support award. While Benavides did testify he was seeking joint

managing conservatorship, he offered scant testimony on which the trial court could have based

its decision to appoint Benavides the joint managing conservator with the exclusive right to

designate the child’s residence.

       Accordingly, because Benavides did not plead for conservatorship or child support, nor did

he present sufficient evidence upon which the trial court could have based its determinations

regarding the child, we conclude the trial court erred in rendering the default decree as it pertains

to conservatorship, possession and access, and child support. See Lynch, 540 S.W.3d at 135;

T.K.D.-H., 439 S.W.3d at 481.

                                            Conclusion

       Having found the pleadings and evidence insufficient to support the default decree of

divorce as it pertains to conservatorship, possession and access, and child support, we reverse the

judgment in part as to those issues and remand to the trial court for proceedings consistent with

this opinion. Because Garcia does not challenge the default decree as it pertains to any other issue,

including the division of property, we affirm the judgment in all other respects.

                                                  Sandee Bryan Marion, Chief Justice




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