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.


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      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


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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


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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


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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.




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      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)).


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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).




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      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.




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