AFFIRMED in part; REVERSE and REMAND in part; Opinion Filed November 12, 2019




                                           S   In The
                                  Court of Appeals
                           Fifth District of Texas at Dallas
                                        No. 05-18-01429-CV

                             IN THE INTEREST OF I.B., A CHILD

                        On Appeal from the 255th Judicial District Court
                                     Dallas County, Texas
                             Trial Court Cause No. DF-17-23294

                               MEMORANDUM OPINION
                            Before Justices Myers, Osborne, and Nowell
                                    Opinion by Justice Osborne
          The trial court rendered a final decree of divorce between Mother and Father, the parents

of I.B., and denied Father’s motion for new trial. Father appeals, challenging the trial court’s

division of property and award of child support. We affirm the trial court’s judgment in part,

reverse in part, and remand for further proceedings on the amount of child support to be paid by

Father.

                                           BACKGROUND

          Mother and Father were married in 2013. They ceased to live together as spouses shortly

after I.B.’s birth in early 2017. Mother filed her original petition for divorce on November 22,

2017.

          Father filed a waiver of service. Father also signed and filed Mother’s November 6, 2017

settlement proposal letter. Mother’s settlement offer, however, expired on November 10, 2017,

and Father’s signature is dated November 30, 2017.
       On February 28, 2018, Mother filed a “Motion to Sign Final Decree of Divorce,” requesting

that the trial court render a final decree of divorce in accordance with the parties’ November 30

settlement agreement. The motion recites that Father’s counsel had not responded to Mother’s

request to execute the proposed decree and had not informed Mother’s counsel of any objections

to the proposed decree. The record does not reflect a hearing or an order on this motion. Instead,

the next items in the clerk’s record are Mother’s amended petition, her motion to compel discovery,

and her motion for mediation. There are no orders on these motions.

       Although an attorney filed an entry of appearance on Father’s behalf in February 2018,

Father never filed an answer or responded to any motion.

       The case proceeded to trial before the court on August 9, 2018. Father appeared late, after

Mother’s testimony had begun. He requested a recess until his attorney arrived, which the trial

court granted. Mother then completed her testimony. When Father’s counsel began Mother’s

cross-examination, however, Mother’s counsel objected that “He’s not entitled to ask any

questions of my witness on the judgment nihil dicit.” The trial court sustained the objection, and

no further testimony was taken.

       The trial court rendered judgment on Mother’s requested relief, making findings on the

best interest of the child and a just and right division of the property. The trial court rendered a

final decree of divorce on August 22, 2018. The decree includes a provision that Father must pay

Mother child support of $1,666.36 per month. The decree also recites:

       Respondent, [Father], waived issuance and service of citation by waiver duly filed,
       made a general appearance in the case, appeared in person and through his counsel
       of record, Bilal Khaleeq, however, the Court rendered Judgment Nihil Dicit against
       Respondent for failing to file an answer or any other pleading putting the merits of
       Petitioner’s case at issue.

       Father filed a motion for new trial, arguing that the evidence was legally and factually

insufficient to support the trial court’s judgment. He also argued that the trial court erred by ruling


                                                 –2–
that he could not testify at trial. At the hearing on the motion, Father testified that he withdrew his

consent to the November 6 settlement letter because he disagreed with its provisions about his

visitation with I.B.1 Although the record is not entirely clear, it appears that Father had changed

his mind by the time of the hearing and sought a new divorce decree incorporating the settlement

agreement’s terms. Father also testified that his annual net income was $18,000 to $19,000, not

$100,000 as Mother had testified at trial, but he did not offer any supporting evidence. As he had

at trial, Mother’s counsel referred to “bank statements that show that you made over $100,000 in

the course of six months,” but Father testified the figure was incorrect. The bank statements were

not introduced into evidence either at trial or at the hearing on the motion for new trial. At the

conclusion of the hearing, the trial court denied the motion for new trial, explaining that Father did

not sign the settlement letter before the offer in it expired, and the court “did not render judgment

on this agreement.” Accordingly, the trial court signed its “Order Denying Motion for New Trial”

on October 15, 2018. This appeal followed.

                                                         STANDARDS OF REVIEW

           We review property division issues for abuse of discretion. Reisler v. Reisler, 439 S.W.3d

615, 619 (Tex. App.—Dallas 2014, no pet.). A trial court has wide latitude in how it divides a

community estate, and we presume the court properly exercised its discretion. In Interest of S.C.,

No. 05-15-00873-CV, 2016 WL 4010911, at *2 (Tex. App.—Dallas July 25, 2016, no pet.) (mem.

op.). We also review a trial court’s judgment on child support for abuse of discretion. In re J.G.L.,

295 S.W.3d 424, 426 (Tex. App.—Dallas 2009, no pet.). A trial court’s order of child support will

not be disturbed on appeal unless the complaining party can show a clear abuse of discretion.

Worford v. Stamper, 801 S.W.2d 108, 109 (Tex. 1990).



     1
        The “Child Related Provisions” in Mother’s November 6, 2017 settlement proposal letter permitted Mother to “let the child remain with her
parents in Nepal for a period of at least 2 years.” After I.B. returned to the United States, Father was to have supervised possession until I.B. reached
age 3. In exchange, Father was not required to pay child support.

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       A trial court abuses its discretion when it acts arbitrarily or unreasonably or without any

reference to guiding rules and principles. Gonzalez v. Gonzalez, 331 S.W.3d 864, 866 (Tex.

App.—Dallas 2011, no pet.). In family law cases, the abuse of discretion standard of review

overlaps with the traditional sufficiency standards of review; as a result, legal and factual

sufficiency are not independent grounds of reversible error, but instead constitute factors relevant

to our assessment of whether the trial court abused its discretion. Moroch v. Collins, 174 S.W.3d

849, 857 (Tex. App.—Dallas 2005, pet. denied). To determine whether the trial court abused its

discretion we consider whether the trial court (1) had sufficient evidence on which to exercise its

discretion and (2) erred in its exercise of that discretion. In re A.B.P., 291 S.W.3d 91, 95 (Tex.

App.—Dallas 2009, no pet.). The applicable sufficiency review comes into play with regard to the

first question. Moroch, 174 S.W.3d at 857. We then proceed to determine whether, based on the

elicited evidence, the trial court made a reasonable decision. Id. An abuse of discretion generally

does not occur if some evidence of a substantive and probative character exists to support the trial

court’s decision. In re S.M.V., 287 S.W.3d 435, 450 (Tex. App.—Dallas 2009, no pet.).

       A petition in a divorce case may not be taken as confessed even if the respondent fails to

file an answer. TEX. FAM. CODE § 6.701; Fuentes v. Zaragoza, 555 S.W.3d 141, 162 (Tex. App.—

Houston [1st Dist.] 2018, no pet.). Accordingly, a trial court abuses its discretion in dividing the

community estate based on the respondent’s default where the record does not support the

valuation and division of the estate. Fuentes, 555 S.W.3d at 162.

                                           DISCUSSION

       Father asserts five issues. He challenges the legal and factual sufficiency of the evidence

to support the trial court’s judgment “regarding property division and child support” (Issue 4). He

also contends the trial court:




                                                –4–
                      erred by rendering a decree by default or nihil dicit2 when Father filed an answer
                       and appeared for trial (Issue 1),

                      abused its discretion by rendering a nihil dicit default judgment (Issue 2),

                      erred by excluding him from participating in the trial even if the judgment nihil
                       dicit was proper (Issue 3), and

                      abused its discretion by denying his motion for new trial (Issue 5).

           “In a suit for divorce, the petition may not be taken as confessed if the respondent does not

file an answer.” TEX. FAM. CODE § 6.701. If the respondent in a divorce case fails to answer or

appear, the petitioner must present evidence 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.); see also Friedman v.

Friedman, No. 05-11-00034-CV, 2012 WL 3017073, at *4 (Tex. App.—Dallas July 24, 2012, no

pet.) (mem. op.) (“Defendants in divorce suits are not precluded from defending by their failure to

plead . . . .”). Accordingly, a default judgment of divorce is subject to an evidentiary attack on

appeal. Gonzalez, 331 S.W.3d at 866 (citing Agraz v. Carnley, 143 S.W.3d 547, 552 (Tex. App.—

Dallas 2004, no pet.)). Consequently, we conclude that Father may challenge the legal and factual

sufficiency of the evidence to support the trial court’s judgment regardless of whether he filed an

answer. We further conclude that although the trial court erred by ruling that Father could not

participate in trial, see Friedman, 2012 WL 3017073, at *4, Mother met her burden to support the

material allegations in her petition with the exception of the amount of child support, for the

reasons we discuss below.

           A trial court is charged with dividing the parties’ estate in a just and right manner,

considering the rights of both parties and any children of the marriage. TEX. FAM. CODE § 7.001;


     2
        A judgment rendered against a defendant who appears but does not file an answer is not a default judgment, but a judgment nihil dicit.
Hegwer v. Edwards, 527 S.W.3d 337, 342 (Tex. App.—Dallas 2017, no pet.). Nihil dicit literally means “he says nothing.” Id. (quoting Nihil dicit,
BLACK’S LAW DICTIONARY (10th ed. 2014)). As the court explained in Stoner v. Thompson, a defendant who appears, but does not put the merits
of the plaintiff’s case at issue, is subject to a judgment nihil dicit. 578 S.W.2d 679, 683 (Tex. 1979). A judgment nihil dicit “carries an even stronger
confession than the default judgment,” id. at 682, constituting the non-answering party’s “admission” of the facts properly pleaded and the justice
of the opponent’s claim. See Sedona Pac. Hous. P’ship v. Ventura, 408 S.W.3d 507, 512 (Tex. App.—El Paso 2013, no pet.) (discussing types of
default judgments).

                                                                         –5–
In re S.A.A., 279 S.W.3d 853, 857 (Tex. App.—Dallas 2009, no pet.). Mother testified at trial about

her request that the parties be awarded the bank accounts in their names, the vehicles in their

possession, and their respective retirement accounts. Mother also testified that the parties did not

acquire any stocks, bonds, other accounts, airline miles, real property, or real estate during the

marriage. The trial court awarded property to the parties in accordance with Mother’s requests.

The only debts identified—promissory notes on a 2016 Toyota Corolla and a 2016 Honda

Accord—were divided so that each party would pay the balance due on the vehicle in his or her

possession.

       Father does not argue that the property division was disproportionate or that it omitted

consideration of other community assets or liabilities. Instead, citing Wilson v. Wilson, 132 S.W.3d

533, 539 (Tex. App.—Houston [1st Dist.] 2004, pet. denied), Father argues that child support and

property division “are both financial issues,” so both issues must be remanded when the property

division is not supported by sufficient evidence. In Wilson, insufficient evidence supported

division of the community estate where the decree referenced real estate, notes, and other assets

not described or valued during the wife’s testimony. See id. at 538. This Court reached a similar

conclusion in In re E.M.V., where the trial court divided three houses and additional real estate in

Dallas and Mexico between the parties without any evidence of the values of the properties. In re

E.M.V., 312 S.W.3d at 291.

       Here, in contrast, Father does not identify any similar unvalued assets or liabilities. In

Deltuva v. Deltuva, 113 S.W.3d 882, 887 (Tex. App.—Dallas 2003, no pet.), we explained that

“when a party does not provide values for property to be divided, that party may not complain on

appeal that the trial court lacked sufficient information to properly divide the property.” Father did

not make any offer of proof after the trial court sustained Mother’s objection to his participation

at trial. See Bobbora v. Unitrin Ins. Servs., 255 S.W.3d 331, 334–35 (Tex. App.—Dallas 2008, no

                                                 –6–
pet.) (failure to make offer of proof to demonstrate substance of excluded evidence results in

waiver); TEX. R. EVID. 103(a)(2) (party may claim error in ruling to exclude evidence only if error

affects a substantial right of the party, and the party informs court of its substance by offer of proof,

unless substance apparent from context); In re D.T.K., No. 05-10-01613-CV, 2014 WL 3808914,

at *3 (Tex. App.—Dallas Aug. 1, 2014, no pet.) (mem. op.) (applying rule 103(a)(2) to valuation

of mixed-property residence in divorce). Nor does Father’s motion for new trial identify property

that was not included in the trial court’s division. When permitted to testify at the hearing on his

motion for new trial, Father said nothing about community assets or liabilities omitted from the

decree and made no offers of proof. Nor has he argued that the trial court’s property division affects

his ability to pay child support. On this record, we cannot conclude that the trial court abused its

discretion in the decree’s property division. See In re A.B.P., 291 S.W.3d at 95.

           Similarly, to the extent Father challenges the trial court’s conservatorship determinations,3

he has not shown a clear abuse of discretion. Mother testified that Father lives in California and

has seen I.B. only a few times since his birth. Most of the visits occurred after Father hired an

attorney to represent him in the divorce. Mother explained that Father did not know how to feed

or care for I.B., and when I.B. is with Father, I.B. “cries too much, like, he thinks he met a stranger

or somebody.” She testified that Father had not participated at all in I.B.’s caregiving. Father had

never taken I.B. to the doctor and did not know the doctor’s name or contact information. She

concluded that I.B.’s physical, psychological, and emotional needs and his development would not

benefit from appointment of Father as joint managing conservator, especially because of Father’s

lack of relationship with I.B. and the distance between the parties’ homes. She requested

supervised visitation until I.B. is three because of I.B.’s “lack of relationship” with Father and


     3
       Although Father does not assert an issue specifically complaining of the trial court’s conservatorship determinations, his brief includes his
complaint that he was “not even allowed to cross-examine Mother about her request that his time with his child be supervised.” Consequently, we
consider whether the trial court abused its discretion in its conservatorship rulings. See TEX. R. APP. P. 38.1(f) (statement of issue or point in
appellant’s brief “will be treated as covering every subsidiary question that is fairly included”).

                                                                       –7–
Father’s lack of experience in raising children. Mother testified that she was asking the court to

award standard possession to Father after I.B. reaches age three. The trial court’s decree includes

detailed provisions addressing Father’s visitation before I.B. reaches age three, and provides for

standard visitation thereafter. We conclude the trial court had sufficient evidence on which to

exercise its discretion, and did not abuse its discretion in its rulings on conservatorship of I.B. See

In re A.B.P., 291 S.W.3d at 95; see also TEX. FAM. CODE § 153.254 (factors to consider for

possession of child less than three years of age).

       We reach a different conclusion, however, regarding the amount of child support. Mother

did not offer evidence of Father’s income from which an amount of child support could be

determined, other than her unsupported testimony that Father earned $100,000 per year working

for Uber and Lyft. She did not know whether the $100,000 figure represented gross income or net.

Under Texas law, child support is generally determined by calculating the child support obligor’s

monthly net resources and applying statutory guidelines to that amount. Gonzalez, 331 S.W.3d at

868 (citing TEX. FAM. CODE §§ 154.062(a), 154.125, 154.122, 154.123). Mother did not present

evidence from which the trial court could calculate Father’s net resources or apply a statutory

presumption in order to determine Father’s child support liability. See id. at 868; see also TEX.

FAM. CODE § 154.068(a) (stating presumption to be applied in absence of evidence of party’s

resources). Although Mother’s attorney at both hearings referred to documentary evidence of

Father’s earnings, nothing was offered into evidence other than Mother’s testimony. We note that

the trial court was not required to believe Father’s unsubstantiated testimony at the hearing on his

motion for new trial that he made “around 18 or 19 thousand” annually. Reisler v. Reisler, 439

S.W.3d 615, 620 (Tex. App.—Dallas 2014, no pet.) (trial court is sole judge of witnesses’

credibility in family law bench trial). But given this record, the trial court did not have sufficient

evidence on which to exercise its discretion in making its child support determination. See In re

                                                 –8–
A.B.P., 291 S.W.3d at 95. Consequently, we conclude that the trial court abused its discretion in

ordering child support in the amount of $1,666.36 per month. See id. We sustain the portions of

Father’s first four issues challenging the amount of child support. We decide the remainder of

Father’s first four issues against him.

       In his fifth issue, Father argues that the trial court erred by denying his motion for new trial

because he met the requirements of Craddock v. Sunshine Bus Lines, Inc., 134 Tex. 388, 133

S.W.2d 124 (1939). Because we have already sustained Father’s challenge to the amount of child

support, we consider his fifth issue only insofar as it challenges the trial court’s rulings on

conservatorship and property division. A motion for new trial from a judgment nihil dicit is

governed by the same standards as a new trial from a default judgment. Evans v. Woodward, 669

S.W.2d 154, 155 (Tex. App.—Dallas 1984, no writ). Craddock and the cases following it provide

that a default judgment should be set aside and a new trial ordered in any case in which (1) the

failure of the defendant to answer before judgment was not intentional or the result of conscious

indifference on his part, but was due to mistake or accident; (2) the motion for new trial sets up a

meritorious defense; and (3) the motion for new trial is filed at a time when the granting thereof

will occasion no delay or otherwise work an injury to the plaintiff. Friedman v. Friedman, No.

05-11-00034-CV, 2012 WL 3017073, at *1 (Tex. App.—Dallas July 24, 2012, no pet.) (mem. op.).

       We conclude that Father’s motion failed to set up a meritorious defense on conservatorship

or property division. As we have explained:

       The requirement of a motion that ‘sets up a meritorious defense’ has been explained
       by the Supreme Court as including two elements: (1) allegation of facts which in
       law constitute a defense, as distinguished from a legal conclusion that defendant
       has such a defense, and (2) support of such an allegation by affidavits or other
       evidence proving prima facie that defendant has a meritorious defense.

Bredeson v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 513 S.W.2d 110, 112 (Tex. Civ. App.—

Dallas 1974, no writ). Although Father’s motion for new trial alleges that he “has a meritorious


                                                –9–
defense to the cause of action alleged in this case,” the motion does not identify the defense. The

motion contains Father’s declaration under penalty of perjury that “[t]he statement contained in

paragraph [sic] 1 to 6 in the motion is within my personal knowledge and is true and correct,” but

he alleged in those paragraphs only that he was “not allowed to present any testimony” and “[t]he

evidence [sic] presented by the Petitioner was no [sic] supported by facts.” On appeal, Father relies

on his “testimony that his child support ordered by the trial court was based upon a grossly

exaggerated income figure” for his meritorious defense. He does not make any argument regarding

the trial court’s property division or conservatorship rulings. Consequently, we conclude the trial

court did not err by denying Father’s motion for new trial on conservatorship and property division,

and we decide his fifth issue against him.

                                             CONCLUSION

       We reverse that part of the final decree of divorce concerning the amount of child support

to be paid by Father. We remand to the trial court for determination of that issue. In all other

respects, we affirm the final decree of divorce.




                                                   /Leslie Osborne/
                                                   LESLIE OSBORNE
                                                   JUSTICE

181429F.P05




                                                –10–
                                        S
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                      JUDGMENT

 IN THE INTEREST OF I.B., A CHILD,                  On Appeal from the 255th Judicial District
                                                    Court, Dallas County, Texas
 No. 05-18-01429-CV                                 Trial Court Cause No. DF-17-23294.
                                                    Opinion delivered by Justice Osborne;
                                                    Justices Myers and Nowell, participating.

      In accordance with this Court’s opinion of this date, the judgment of the trial court is
AFFIRMED in part and REVERSED in part. We REVERSE that portion of the trial court’s
judgment ordering appellant Poojan Bhandari to pay appellee Neelam Sijapati child support in the
amount of $1,666.36 per month. In all other respects, the trial court’s judgment is AFFIRMED.
We REMAND this cause to the trial court for further proceedings consistent with this opinion.

       It is ORDERED that each party bear his or her own costs of this appeal.


Judgment entered November 12, 2019




                                             –11–
