                                  NO. 12-14-00056-CV

                          IN THE COURT OF APPEALS

               TWELFTH COURT OF APPEALS DISTRICT

                                     TYLER, TEXAS

IN THE MATTER OF THE MARRIAGE                     §     APPEAL FROM THE

OF BARNEY SAMUEL BRADSHAW                         §     COUNTY COURT AT LAW

AND AMANDA CHERI BRADSHAW                         §     RUSK COUNTY, TEXAS

                                  MEMORANDUM OPINION
       Barney Samuel Bradshaw appeals the trial court’s final decree of divorce. On appeal,
Barney presents three issues. We reverse and remand.


                                          BACKGROUND
       Barney and Amanda Cheri Bradshaw were married on November 13, 2010. Amanda
filed an original petition for divorce on September 10, 2013, requesting that the court divide their
estate in a manner that the court deems just and right. Barney filed an answer, and the trial court
set the case for a bench trial to be held on November 12, 2013. Barney received notice of the
trial setting and, at the time, he was confined in the Rusk County jail. On the day of the bench
trial, Barney requested transport to the Rusk County Courthouse, but, he said, officials at the
Rusk County jail refused his request.
       The bench trial proceeded without Barney present. Amanda was the only witness at trial,
and her testimony comprised less than two pages of the record. She testified that the marriage
had become insupportable because of discord or conflict of personalities. She asked the trial
court to grant the divorce, and presented the trial court with a proposed final decree of divorce.
The proposed decree awarded her all of the community property in her possession and awarded
Barney all of the community property in his possession. Amanda testified that such a division of
the community property was fair and equitable to both her and Barney. At the conclusion of the
hearing, the trial court granted the divorce, awarded the community property as Amanda
requested, and found Amanda’s requested division to be ―a fair, just, and equitable division of
the community property and debts.‖
       The trial court then signed the final decree of divorce proposed by Amanda. However, in
addition to the division of community property, the final decree awarded a house and real
property to Amanda as her separate property. Barney filed a motion for new trial, arguing that
the failure to transport him to the final hearing was error. After a hearing, the trial court denied
Barney’s motion. This appeal followed.


                               COMMUNITY PROPERTY DIVISION
       In his first issue, Barney contends that there is no evidence or insufficient evidence to
support the trial court’s division of the community estate.
Applicable Law
       In a decree of divorce, a 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. TEX.
FAM. CODE ANN. § 7.001(Vernon 2006). We review a trial court's division of property under an
abuse of discretion standard. Von Hohn v. Von Hohn, 260 S.W.3d 631, 640 (Tex. App.—Tyler
2008, no pet.). In determining whether the trial court abused its discretion, we review the entire
record to determine if the trial court acted arbitrarily and unreasonably. Toles v. Toles, 45
S.W.3d 252, 266 (Tex. App.–Dallas 2001, pet. denied). Legal and factual sufficiency challenges
are not independent grounds for asserting error in the division of property upon divorce, but
instead are relevant factors in determining whether the trial court abused its discretion. See In re
Marriage of C.A.S. and D.P.S., 405 S.W.3d 373, 383 (Tex. App.—Dallas 2013, no pet.). We
engage in a two-pronged inquiry to determine whether the trial court abused its discretion: (1)
did the trial court have sufficient evidence upon which to exercise its discretion and (2) did the
trial court err in its application of that discretion? Neyland v. Raymond, 324 S.W.3d 646, 649
(Tex. App.—Fort Worth 2010, no pet.).
       The trial court must have an evidentiary basis for its findings. See Salinas v. Rafati, 948
S.W.2d 286, 289 (Tex. 1997). A trial court does not abuse its discretion if there is some
evidence of a substantive and probative character to support the decision. Von Hohn, 260
S.W.3d at 640. If the trial court does not make any valuation findings, we do not know what
share of the marital estate either party received. See Wells v. Wells, 251 S.W.3d 834, 841 (Tex.



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App.–Eastland 2008, no pet.). When no findings of fact or conclusions of law are filed or
requested, it is implied that the trial court made all the necessary findings to support its
judgment. Worford v. Stamper, 801 S.W.2d 108, 109 (Tex. 1990). If the trial court’s implied
findings are supported by the evidence, we must uphold the judgment on any theory of law
applicable to the case. Wells, 251 S.W.3d at 838-39.
       Even when a respondent in a divorce case fails to answer or appear, the petitioner must
still present evidence to support the material allegations in the petition. Vazquez v. Vazquez, 292
S.W.3d 80, 83-84 (Tex. App.—Houston [14th Dist.] 2007, no pet.); see Stoner v. Thompson,
578 S.W.2d 679, 682 (Tex. 1979) (stating that judgment cannot be entered on pleading in
postanswer default judgment, but plaintiff must offer evidence and prove case as in judgment
upon trial). Thus, the trial court’s implied findings are subject to an evidentiary attack on appeal.
See Vazquez, 292 S.W.3d at 84. We reverse a trial court’s division of property only if the error
materially affects the court’s just and right division of the property. Von Hohn, 260 S.W.3d at
640. However, once reversible error affecting the ―just and right‖ division of the community
estate is found, an appellate court must remand the entire community estate for a new division.
Sheshtawy v. Sheshtawy, 150 S.W.3d 772, 780 (Tex. App.–San Antonio 2004, pet. denied)
(quoting Jacobs v. Jacobs, 687 S.W.2d 731, 733 (Tex. 1985)).
Analysis
       The evidence at trial was incredibly sparse, consisting of less than two pages of
testimony. Amanda did not present any evidence that identified or described the assets of the
community estate. She presented no evidence of the value of the community estate or of the
percentage that each party would receive in her proposed division of the property. Instead,
Amanda simply stated that her proposed division of the community estate was fair and equitable
to both her and Barney. Because Amanda did not present evidence at the trial to support the
division of the community estate, the trial court’s implied findings regarding the division of the
community estate are not supported by evidence of a substantive and probative character. See
Von Hohn, 260 S.W.3d at 640; see also Odom v. Odom, No. 12-06-00218-CV, 2007 WL
677800, at *2 (Tex. App.—Tyler Mar. 7, 2007, no pet.) (mem. op.) (trial court cannot make just
and right division when it ―has no evidence of what exactly it is dividing‖). Therefore, the trial
court abused its discretion in ordering a division of the community estate in its final decree of




                                                 3
divorce. See Chamberlain v. Chamberlain, No. 12-09-00187-CV, 2011 WL 2135128, at *4
(Tex. App.—Tyler May 31, 2011, no pet.) (mem. op.).
         On appeal, Amanda requests that we consider the evidence presented during the hearing
on Barney’s motion for new trial in determining whether the trial court abused its discretion in
dividing the community estate. However, Amanda provides no authority for her request. When
determining whether there is evidence to support the trial court’s property division, we
necessarily examine the evidence considered for the decision rather than information provided
after the fact. See Morena v. Perez, 363 S.W.3d 725, 735 (Tex. App.—Houston [1st Dist.] 2011,
no pet.). The trial court made it clear during the hearing on the motion for new trial that it was
not rehearing the case, but was deciding only whether a new trial was warranted. In the trial
court’s order denying Barney’s motion for new trial, the trial court explicitly stated that its ―Final
Decree of Divorce rendered and entered‖ after the trial was ―in full force and effect‖ and was
―the final order of the [trial court] in this matter.‖ We see no basis for considering any evidence
other than that presented at trial. See In re C.L., No. 10-11-00228-CV, 2011 WL 5830472, at *4
n.1 (Tex. App.—Waco Nov. 16, 2011, no pet.) (mem. op.) (In determining sufficiency of
evidence in family law issue, court considered, albeit at party’s request, only evidence presented
at final hearing.).
         We further note that Amanda never requested that the trial court reopen the evidence.
See TEX. R. CIV. P. 270 (allowing a trial court to permit additional evidence to be offered when it
clearly appears necessary to the due administration of justice). She also opposed both Barney’s
motion for new trial and his effort to participate in the trial.1 If the trial court had reopened the
evidence, Barney would have been given opportunity to present evidence as well.
         We sustain Barney’s first issue.


                                             SEPARATE PROPERTY
         In his second issue, Barney contends that there is no evidence or insufficient evidence to
support the trial court’s award of separate property to Amanda. We presume that property on
         1
          While the testimony at the hearing on the motion for new trial did provide additional details regarding the
community estate, Amanda testified that she received one hundred percent of the community estate and Barney
received nothing. She further testified that she believed it was fair and just for her to receive all of the community
estate and Barney to receive nothing. Even if we considered this evidence, the trial court abused its discretion in
awarding the entire community estate to Amanda. See TEX. FAM. CODE ANN. § 7.001 (trial court should divide
community estate in a manner that has due regard for the rights of each party).




                                                          4
hand at the dissolution of a marriage is community property. TEX. FAM. CODE ANN. § 3.003(a)
(West 2006). To overcome the presumption, a party must establish that the property is separate
property by clear and convincing evidence. Id. § 3.003(b). Because the burden of proof is clear
and convincing evidence, we apply a higher standard of review to support the trial court’s
decision. See Wells, 251 S.W.3d at 839. Clear and convincing evidence is that measure or
degree of proof that will produce in the mind of the factfinder a firm belief or conviction as to
the truth of the allegations sought to be established. Id.; TEX. FAM. CODE ANN. § 101.007 (West
2014). As with the division of the community estate, we review a trial court’s characterization of
property as community or separate under an abuse of discretion standard. Wells, 251 S.W.3d at
838.
         At trial, Amanda never mentioned any separate property or described any such property.
Her proposed final divorce decree awarded her a home and real property as her separate
property, but there is no evidence to support the award. Because there is no evidence to support
the trial court’s characterization of the house and real property as Amanda’s separate property,
the trial court abused its discretion in awarding separate property to Amanda. See id. at 838-39.
         Amanda again requests that we consider evidence produced at the hearing on Barney’s
motion for new trial. For the reasons previously stated, we decline to do so.
         We sustain Barney’s second issue.2


                                                    DISPOSITION
         Having sustained Barney’s first and second issues, we reverse the final decree of divorce
and remand for further proceedings consistent with this opinion.

                                                                          BRIAN HOYLE
                                                                             Justice

Opinion delivered August 13, 2014.
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.




                                                    (PUBLISH)

         2
          Having sustained Barney’s first and second issues, we need not address Barney’s third issue. See TEX. R.
APP. P. 47.1.




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                                  COURT OF APPEALS

      TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

                                           JUDGMENT

                                          AUGUST 13, 2014


                                         NO. 12-14-00056-CV


                        IN THE MATTER OF THE MARRIAGE OF
                            BARNEY SAMUEL BRADSHAW
                           AND AMANDA CHERI BRADSHAW,


                               Appeal from the County Court at Law
                      of Rusk County, Texas (Tr.Ct.No. 2013-09-482CCL)

                      THIS CAUSE came to be heard on the appellate record and the briefs filed
herein, and the same being considered, because it is the opinion of this court that there was error
in the judgment of the court below, it is ORDERED, ADJUDGED and DECREED by this court
that the judgment be reversed and the cause remanded to the trial court for further
proceedings, and that all costs of this appeal are hereby adjudged against the Appellee,
AMANDA CHERI BRADSHAW, in accordance with the opinion of this court; and that this
decision be certified to the court below for observance.
                   Brian Hoyle, Justice.
                   Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.
