      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                        NO. 03-06-00595-CV



                              Magdalena Rodriguez Wolk, Appellant

                                                   v.

                                      Robert E. Wolk, Appellee


     FROM THE DISTRICT COURT OF TRAVIS COUNTY, 261ST JUDICIAL DISTRICT
     NO. D-1-FM-05-006965, HONORABLE LORA J. LIVINGSTON, JUDGE PRESIDING



                              MEMORANDUM OPINION


                This is an appeal from a default judgment granting a final divorce decree. In four

issues, appellant Magdalena Rodriguez Wolk contends that (i) she meets the requirements of a

restricted appeal; (ii) there is no evidence in the record to support the trial court’s setting of the

amount of child support; (iii) there is no evidence in the record to support the trial court’s division

of the marital estate; and (iv) there is no evidence to support the trial court’s assessment of attorney’s

fees and court costs. For the reasons that follow, we affirm the decree in part, and reverse and

remand as to the issues raised by appellant.


                      PROCEDURAL AND FACTUAL BACKGROUND

                On October 20, 2005, appellee Robert Wolk filed for divorce from appellant.

Appellant did not answer or otherwise appear. A brief hearing was held on April 5, 2006. The
record shows that Mr. Wolk was the only witness to testify. He testified that he and appellant have

a nineteen-year-old child with Down syndrome, that appellant has always been the primary caretaker

for the child, and that appellant had taken care of the child for many years. He presented evidence

of his income and asked the court to award appellant child support in the amount of $632 per month.

Mr. Wolk testified that he had paid at least $700 to $1,500 per month for the last fifteen years in

mortgage payments for the home where appellant and their child reside and asked the court not to

grant retroactive child support. Mr. Wolk also testified that he paid $408 per month to provide

health insurance for the child.

               With regard to the division of property, Mr. Wolk testified that he was asking the trial

court to award each of the parties “any and all personal effects in their possession” and “any cash,

bank accounts, retirement accounts in their possession . . . in their name”; to require each party “to

keep and pay any and all debts in their name”; and to divest Mr. Wolk of his interest in the

community homestead and award it to appellant with appellant being responsible for “the mortgage

and all other matters relating to the property.” He testified to the location and legal description of

the community homestead and stated that it was the only real estate that he and appellant both

owned, but he did not provide testimony on the property’s value or the outstanding debt on the

property. The trial court signed a default divorce decree granting the relief sought on the same day

as the hearing. The decree specified that each party was responsible for his or her own attorney’s

fees, expenses and costs, and that court costs were to be borne by the party that incurred them. On

October 4, 2006, appellant filed a notice of appeal.




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                                             ANALYSIS

                In her first issue, appellant argues that she is entitled to a restricted appeal. A party

filing a restricted appeal must demonstrate he filed the appeal within six months of the date the

judgment was rendered; he was a party to the suit; he did not participate at the hearing that resulted

in the judgment complained of or file any post-judgment motions or appeals; and error is apparent

on the face of the record. Tex. R. App. P. 26.1(c), 30; Alexander v. Lynda’s Boutique, 134 S.W.3d

845, 848 (Tex. 2004). The “face of the record” consists of all the papers on file in the appeal,

including the reporter’s record. Vazquez v. Vazquez, ___ S.W.3d ___, No. 14-05-01257-CV, 2007

Tex. App. LEXIS 4713, at *4 (Tex. App.—Houston [14th Dist.] June 19, 2007, no pet.); see also

Norman Commc’ns v. Texas Eastman Co., 955 S.W.2d 269, 270 (Tex. 1997).

                Mr. Wolk concedes that appellant has established the first three requirements of a

restricted appeal and that only the fourth requirement, error on the face of the record, is at issue. In

her second, third and fourth issues, appellant argues that error is apparent on the face of the record

as to the trial court’s determinations regarding the division of the marital estate, the amount of child

support, and the allocation of attorney’s fees and court costs. As to the trial court’s determinations

on these issues, we agree that error is apparent on the face of the record.


Standard of Review

                “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). When a respondent in a

divorce case fails to answer, the petitioner must still present proof to support the material allegations



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in the petition. Vazquez, 2007 Tex. App. LEXIS 4713, at *5-6; see also Barry v. Barry, 193 S.W.3d

72, 75 (Tex. App.—Houston [1st Dist.] 2006, no pet.). Because appellant failed to answer or appear,

Mr. Wolk was required to present proof at trial to support the material allegations in his petition.

                Most appealable issues in family law cases are subject to evaluation under the abuse

of discretion standard, including the division of property and the assessment of child support.

Sandone v. Miller-Sandone, 116 S.W.3d 204, 205 (Tex. App.—El Paso 2003, no pet.). The test

for abuse of discretion is whether the court acted without reference to any guiding principles

and rules. Id. at 206. A default judgment of divorce also is subject to an evidentiary attack

on appeal. Vazquez, 2007 Tex. App. LEXIS 4713, at *6. When sufficiency review overlaps the

abuse of discretion standard, the inquiry on appeal is two-fold: did the trial court have sufficient

information upon which to exercise its discretion and did the trial court err in its application of its

discretion. Sandone, 116 S.W.3d at 206. Evidentiary sufficiency review comes into play as to the

first question. Id.1


Division of Marital Estate

                In her third issue, appellant contends that the trial court erred in its division of the

marital estate. The trial court awarded the community homestead to appellant, but ordered her to

pay the “balance due, including principal, interest, tax, and insurance escrow, on the promissory note

executed by [Mr. Wolk and appellant] on the [homestead].” The trial court also awarded all personal



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          Because we conclude that the trial court did not have sufficient information to exercise its
discretion in the division of the marital estate, the assessment of child support, or the award of
attorney’s fees, we only address the first inquiry as to each issue appellant raises.

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effects, cash, bank accounts and retirement accounts to the party in possession and ordered both

parties to pay “any and all debt” in his or her name.

                The Texas Family Code provides that “[i]n a decree of divorce or annulment, the

court shall order a division of the estate of the parties in a manner that the court deems just and right,

having due regard for the rights of each party and any children of the marriage.” Tex. Fam. Code

Ann. § 7.001 (West 2006). Courts have broad discretion in suits for divorce when dividing the

property; but the division must be “just and right.” Sandone, 116 S.W.3d at 207.

                This case is similar to O’Neal v. O’Neal, 69 S.W.3d 347 (Tex. App.—Eastland 2002,

no pet.), also a restricted appeal of a default divorce judgment. In O’Neal, the petitioner was the

only witness at the hearing and provided scant testimony. Id. at 348-50. The trial court divided the

community property, including real property, cash, bank accounts, retirement accounts, IRA

accounts, stocks, bonds and securities between the parties, without evidence of the value of the

property. Id. at 348-50. The court of appeals concluded that the trial court had abused its discretion

in the division of the estate based on lack of evidence. Id. at 350.

                The El Paso court of appeals reached the same conclusion in another case involving

a restricted appeal of a default divorce decree. Sandone, 116 S.W.3d at 205. The court reversed the

trial court’s division of property because there was no evidence of the value of the assets or the

amount of the liabilities. Id. at 207-08. Stating that “[w]ithout the ability to determine the size of

the community pie, we can make no determination that the slices awarded to each spouse were just

and right,” the court held “a division of community property cannot be upheld where the record is

absolutely devoid of any testimony concerning the value of the property divided by the court.” Id.



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at 205, 207-08; see also Wilson v. Wilson, 132 S.W.3d 533, 538 (Tex. App.—Houston [1st Dist.]

2004, no pet.) (reversing property division due to the “dearth of evidence identifying, describing, and

valuing the community estate”).

               Similarly, this record lacks evidence identifying, describing, and valuing the

community estate. Although Mr. Wolk testified as to the location and legal description of the

community homestead, and stated that he had made mortgage payments on the home of at least $700

to $1,500 per month for fifteen years, no other evidence was presented as to the value of the property

or the outstanding debt on the property. Likewise, no evidence was presented to identify, describe,

or value the other assets and liabilities divided in the decree. Instead, Mr. Wolk merely asked that

the court allow each party to “keep any cash, bank accounts, retirement accounts in their possession

. . . in their name” and that “each party be able to keep and pay any and all debts in their name.”

Accordingly, we conclude error is apparent on the face of the record and that the trial court abused

its discretion in the division of the marital estate based on the lack of evidence. See Sandone,

116 S.W.3d at 208. We sustain appellant’s third issue.


Amount of Child Support

               In her second issue, appellant contends the trial court erred in its determination of

the amount of child support. The trial court applied the child support guidelines, based upon

evidence of Mr. Wolk’s income, and awarded appellant $632 per month in child support. See

Tex. Fam. Code Ann. § 154.130 (West 2002). Because we have remanded the division of the

community estate to the trial court, we also remand the determination of child support as such an

award may be “materially influenced” by the property division, and we should not substitute our



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discretion for that of the trial court. See Vazquez, 2007 Tex. App. LEXIS 4713, at *12; see also

Wilson, 132 S.W.3d at 539.

                The Texas Family Code also specifies four factors that a court “shall determine and

give special consideration to” when setting the amount of child support for a disabled child after his

eighteenth birthday. Tex. Fam. Code Ann. § 154.306 (West 2002). The factors are:


          (1)   any existing or future needs of the adult child directly related to the adult
                child’s mental or physical disability and the substantial care and personal
                supervision directly required by or related to that disability;

         (2)    whether the parent pays for or will pay for the care or supervision of the adult
                child or provides or will provide substantial care or personal supervision of
                the adult child;

          (3)   the financial resources available to both parents for the support, care, and
                supervision of the adult child; and

         (4)    any other financial resources or other resources or programs available for the
                support, care, and supervision of the adult child.


Id. Though evidence was presented that the child has Down syndrome, that appellant has always

been the primary caretaker, and that she has been taking care of the child for years, there was

no evidence showing the child’s current or future medical needs relating to his disability, the

substantial care and supervision required relating to the child’s disability, whether appellant pays or

will pay for the care or supervision of the child or will provide substantial care, or financial or other

resources or programs available for the support and care of the child. We conclude that on the face

of the record, the trial court did not have sufficient information “to determine and give special

consideration” to the statutorily required factors. See id.; see also Sandone, 116 S.W.3d at 208. We

sustain appellant’s second issue.

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Attorney’s fees and court costs

               In her fourth issue, appellant contends the trial court erred in its assessment of

attorney’s fees and court costs. The trial court ordered in the divorce decree that each party was

responsible for his or her own attorney’s fees, expenses and costs, and that court costs were to be

borne by the party that incurred the costs. A court may apportion attorney’s fees in a divorce action

as part of a just and right division of the property. Sandone, 116 S.W.3d at 208. Mr. Wolk,

however, did not present any evidence of incurred attorney’s fees. Because we have reversed and

remanded the division of the marital estate, and because no evidence was presented on the amount

of incurred attorney’s fees, we sustain appellant’s fourth issue and remand the assessment of fees and

costs for further consideration by the trial court in connection with the other remanded issues. See

Barry, 193 S.W.3d at 76.


                                          CONCLUSION

               We affirm the trial court decree in part, and having sustained appellant’s issues,

reverse and remand for a new trial on the issues raised by appellant.




                                       __________________________________________

                                       Jan P. Patterson, Justice

Before Justices Patterson, Pemberton and Waldrop

Affirmed in part; Reversed and Remanded in part

Filed: September 12, 2007

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