      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                               ON MOTION FOR REHEARING


                                      NO. 03-07-00011-CV


                                   Steven J. Steele, Appellant

                                                 v.

                                    Raquel J. Steele, Appellee


  FROM THE DISTRICT COURT OF CALDWELL COUNTY, 207TH JUDICIAL DISTRICT
       NO. 06-D-070, HONORABLE TODD A. BLOMERTH, JUDGE PRESIDING



                            MEMORANDUM OPINION

               Having previously granted appellant Steven J. Steele’s motion for rehearing and

withdrawn our opinion and judgment dated May 4, 2007, we substitute the following opinion in

place of the earlier one.

               This is a restricted appeal from a default judgment granting a final divorce decree

between appellant Steven J. Steele and appellee Raquel J. Steele, now Raquel M. Juarez.1 After

initially determining that Steele had failed to timely file his notice of appeal of the trial court’s

October 12, 2006 judgment and dismissing the appeal for want of jurisdiction, we granted Steele’s

motion to amend his notice of appeal, thereby permitting him to proceed with this appeal as a

restricted appeal. See Tex. R. App. P. 26.1, 30. By two issues divided into five sub-issues, Steele


        1
         The judgment and notice of appeal both identify appellee as Raquel J. Steele. To avoid
confusion, however, we will refer to her in this opinion as “Juarez,” as she now identifies herself.
argues that: (1) he meets the requirements for a restricted appeal; (2) the trial court abused its

discretion in failing to name him a joint managing conservator of his and Juarez’s children, S.J.S.,

K.N.S., and R.D.S.; (3) there is no evidence in the record to support the trial court’s setting of the

amount of child support; (4) there is no evidence to support the trial court’s division of the marital

estate; and (5) there is no evidence to support the trial court’s assessment of attorney’s fees. For the

reasons that follow, we affirm the final divorce decree in part and reverse and remand in part.


                      FACTUAL AND PROCEDURAL BACKGROUND

                On January 30, 2006, Juarez filed for divorce from Steele. Steele did not answer or

otherwise appear. A brief hearing was held on October 12, 2006. The record shows that Juarez was

the only witness to testify. She testified that she and Steele had three children during their marriage,

S.J.S., K.N.S., and R.D.S. She stated that although Steele had been personally served with this suit

for divorce on March 23, 2006, he had not made any appearance or answer; that the two had ceased

to live together; and that their marriage had become unsupportable with no reasonable expectation

of reconciliation. She further stated that she was seeking child support from Steele in accordance

with the statutory guidelines in the amount of $580, as well as reimbursement for health insurance

for all three children. Juarez also testified that she and Steele had divided all of their property and

that the final divorce decree indicated how they had divided all of their debts. At the conclusion of

the testimony, the trial court orally pronounced that the divorce “is granted on good and sufficient

evidence.” The same day, the trial court signed the divorce decree and orders for withholding

Steele’s wages for the payment of child support. The court also awarded Juarez $1,200 in

attorney’s fees.

                                                   2
               On December 11, 2006, Steele filed a motion for new trial and, in the alternative,

petition for bill of review, alleging that he had not received a copy of the October 12 divorce decree

within twenty days of the date of the order, thereby entitling him to an extended time period to file

his motion for new trial; that his failure to file an answer was the result of mistake, rather than

conscious indifference; and that he had been prevented from defending himself in the divorce action

because of Juarez’s alleged fraud. Juarez filed a response, arguing that the trial court lacked plenary

power to consider Steele’s motion for new trial because it was not filed within thirty days of the

signing of the final divorce decree. See Tex. R. Civ. P. 329b. After a hearing, the trial court found

that Steele had actual notice of the October 12 judgment, concluded that it lacked plenary power “to

do anything with this case, the 30 days having been run,” and denied Steele’s motion for new trial

by order dated January 4, 2007.

               On January 10, 2007, Steele filed his notice of appeal, arguing that in accordance with

rule 306a of the rules of civil procedure, the appellate timetable should be calculated from the date

he first obtained a copy of the judgment—November 7, 2006—rather than the date it was signed.

See Tex. R. Civ. P. 306a(4) (providing that if within twenty days after judgment or other appealable

order is signed, party or his attorney does not receive notice or actual knowledge of that event, then,

with respect to that party, all periods for filing motions for new trial and other such documents begin

on date that notice or actual knowledge of signing occurred).2 To establish the applicability of this

rule, the adversely affected party is required to prove in the trial court, on sworn motion and notice,




       2
          The rule further provides that such time periods cannot begin more than ninety days after
the original judgment or other appealable order was signed. See Tex. R. Civ. P. 306a(4).

                                                  3
the date on which the party or his attorney first either received notice of the judgment or acquired

actual knowledge of the signing. Tex. R. Civ. P. 306a(5).

               An appellate court can review the sufficiency of the evidence to support the trial

court’s findings concerning the date that a party received actual notice of a judgment. Texaco, Inc.

v. Phan, 137 S.W.3d 763, 766 n.1 (Tex. App.—Houston [1st Dist.] 1990, writ denied). Accordingly,

this Court initially determined in our now-withdrawn opinion that the trial court’s finding that Steele

had actual knowledge of the judgment on October 12, 2006, was supported by legally and factually

sufficient evidence; therefore, Steele was not entitled to an extended timetable under rule 306a. In

dismissing Steele’s appeal for want of jurisdiction, however, this Court did not address Steele’s

motion to amend his notice of appeal and proceed instead with a restricted appeal.

               By motion for rehearing, Steele again urged this Court to permit him to pursue a

restricted appeal. After requesting a response from Juarez, we granted Steele’s motions for rehearing

and leave to amend his notice of appeal and withdrew our prior opinion and judgment. This

restricted appeal followed.


                                           DISCUSSION

               A restricted appeal is available for the limited purpose of providing

a non-participating party an opportunity to correct an erroneous judgment. Clopton v. Pak,

66 S.W.3d 513, 516 (Tex. App.—Fort Worth 2001, pet. denied). To prevail on his restricted appeal,

Steele must establish that: (1) he filed notice of the restricted appeal within six months after the

judgment was signed; (2) he was a party to the underlying lawsuit; (3) he did not participate in the

hearing that resulted in the judgment complained of and did not timely file any postjudgment

                                                  4
motions or requests for findings of fact and conclusions of law; and (4) error is apparent on the face

of the record. See Alexander v. Lynda’s Boutique, 134 S.W.3d 845, 848 (Tex. 2004). In light of

our ruling on Steele’s motion to amend his notice of appeal, the record establishes that each of the

first three elements has been met. With respect to the fourth element, Steele argues that error is

apparent on the face of the record because there is no evidence to support the trial court’s judgment

on the issues of conservatorship, possession of and access to the children, the division of the

community estate, and the award of attorney’s fees to Juarez.

               The face of the record, for purposes of a restricted appeal, consists of all the papers,

including the reporter’s record, on file when the trial court rendered judgment. DSC Fin. Corp.

v. Moffitt, 815 S.W.2d 551 (Tex. 1991). Because a restricted appeal affords the same scope of

review as an ordinary appeal, the appealing party may challenge the legal and factual sufficiency of

the evidence to support the order rendered.        See Miles v. Peacock, 229 S.W.3d 384, 387

(Tex. App.—Houston [1st Dist.] 2007, no pet.) (citing Norman Commc’ns v. Texas Eastman Co.,

955 S.W.2d 269, 270 (Tex. 1997)). Thus, we now turn to Steele’s arguments that certain portions

of the trial court’s order are unsupported by legally sufficient evidence.


Standard of Review

               In family law cases, the traditional sufficiency standards of review overlap with the

abuse-of-discretion standard of review; therefore, legal and factual insufficiency are not independent

grounds of error but are relevant factors in our assessment of whether the trial court abused its

discretion.   Boyd v. Boyd, 131 S.W.3d 605, 611 (Tex. App.—Fort Worth 2004, no pet.).

Accordingly, to determine whether there has been an abuse of discretion because the evidence is

                                                  5
legally or factually insufficient to support the trial court’s decision, we engage in a two-pronged

inquiry, determining whether (1) the trial court had sufficient evidence upon which to exercise its

discretion, and (2) the trial court erred in its application of that discretion. Id.; see Moroch

v. Collins, 174 S.W.3d 849, 857 (Tex. App.—Dallas 2005, pet. denied). The applicable sufficiency

review comes into play with regard to the first question. Boyd, 131 S.W.3d at 611. We must sustain

a legal-sufficiency point: (1) when there is a complete absence of a vital fact; (2) when rules of law

or evidence preclude according weight to the only evidence offered to prove a vital fact; (3) when

the evidence offered to prove a vital fact is no more than a scintilla; or (4) when the evidence

conclusively establishes the opposite of the vital fact. City of Keller v. Wilson, 168 S.W.3d 802,

810 & nn.15-16 (Tex. 2005).

               In determining the legal sufficiency of the evidence, we must consider evidence

favorable to the finding if a reasonable factfinder could and disregard evidence contrary to the

finding unless a reasonable factfinder could not. Id. at 827. We must review all the evidence in the

light most favorable to the finding. Id.; Diamond Shamrock Ref. Co., L.P. v. Hall, 168 S.W.3d 164,

170 (Tex. 2005). When there is no evidence or insufficient evidence to support the property division

or an award of attorney’s fees in a divorce action, we must reverse and remand for a new trial.

Sandone v. Miller-Sandone, 116 S.W.3d 204, 208 (Tex. App.—El Paso 2003, no pet.);

see Wolk v. Wolk, No. 03-06-00595-CV, 2007 Tex. App. LEXIS 7474, at *11 (Tex. App.—Austin

Sept. 12, 2007, no pet.) (mem. op.) (remanding assessment of attorney’s fees and costs in connection

with remand of division of marital estate when no evidence supported attorney’s fee award).




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                Technically, there can be no default judgment in a divorce action. Roa v. Roa,

970 S.W.2d 163, 165 n.2 (Tex. App.—Fort Worth 1998, no pet.). Even when a respondent fails to

file an answer to a petition seeking divorce, the petitioner is required to prove the allegations at the

final hearing on the case because a petitioner’s allegations are not taken as confessed by a

respondent’s failure to answer. Id.


Conservatorship

                In his first sub-issue, Steele argues that the final divorce decree violated the statutory

presumption imposed by the family code provision that parents be named joint managing

conservators. See Tex. Fam. Code Ann. § 153.131(b) (West 2006) (“It is a rebuttable presumption

that the appointment of the parents of a child as joint managing conservators is in the best interest

of the child.”). The final divorce decree named Juarez sole managing conservator of the children,

S.J.S., K.N.S., and R.D.S., and Steele possessory conservator of the children. Steele contends there

was no evidence that the trial court considered the best interests of the children in making its

conservatorship determination, and the trial court therefore abused its discretion by failing to appoint

the parties joint managing conservators.

                In her response to Steele’s motion for rehearing, Juarez “concedes that the trial court

abused its discretion by naming [her] as the sole managing conservator of the children.” She further

acknowledges that the record contains no evidence to support a determination that naming her the

sole managing conservator is in the best interest of the children. Finally, she concedes, “a sole

conservatorship was not sought in the pleadings and, therefore, as a matter of law, the trial court’s

order of a sole conservatorship is void.” We sustain Steele’s sub-issue as to conservatorship.

                                                    7
Child Support

                By his second sub-issue, Steele contends there is no evidence in the record to support

the trial court’s setting of the amount of child support, which he asserts deviated from the statutory

guidelines. Juarez concedes that the trial court abused its discretion by failing to hear evidence

necessary to calculate net resources for the purposes of determining child-support liability and that

the final divorce decree is defective for its failure to address the reductions in child support

prescribed by section 154.001 of the family code. See Newberry v. Newberry, 146 S.W.3d 233, 236

(Tex. App.—Houston [14th Dist.] 2004, no pet.) (“There must be some evidence of a substantive

and probative character of net resources in order for this duty to be discharged.”). We therefore

sustain Steele’s second sub-issue regarding the child-support order.


Division of the Community Estate

                Steele argues in his third sub-issue that the division of community property cannot

be upheld because the record is devoid of testimony concerning the value of the property or the

debts. He complains specifically that the division of property includes a money judgment “for

reimbursement to Raquel J. Steele of her separate property that was used for a down payment on the

residence that has been repossessed” and a finding that the judgment is “enforceable by contempt”

because the sums existed at the time the decree was rendered. He urges that there is no evidence in

the record to support the award or the finding.

                Juarez responds that the division is adequately supported by her testimony that she

and Steele had divided all of their property and her request that the trial court approve all of the




                                                  8
terms presented in the final divorce decree.3 We disagree. To the extent that assigning Steele

liability for this judgment results in a disproportionate division of the community estate, it is

unsupported by any evidence. Nor is Juarez’s scant testimony sufficient evidence as to the extent

or value of the marital estate or debts.        See O’Neal v. O’Neal, 69 S.W.3d 347, 349-50

(Tex. App.—Eastland 2002, no pet.) (evidence was legally insufficient where only appellee testified

at trial, testimony comprised just four pages, and appellee during his testimony merely referred to

proposed decree he had submitted to trial court as evidence of value of marital estate). We sustain

Steele’s third sub-issue regarding the division of the community estate.


Attorney’s Fees

                Finally, Steele argues that there is no evidence as to the reasonableness and necessity

of Juarez’s attorney’s fees. Juarez maintains that the trial court was presented with sufficient

evidence that it was necessary for her to hire an attorney because (1) Steele did not answer or appear

in the trial court and (2) it was necessary to make arrangements regarding the community property,

conservatorship, and child support for their three children. Even if we construe this as some

evidence that attorney’s fees were necessary, it is not evidence that $1,200 in attorney’s fees were




       3
           Juarez’s testimony at the October 12 hearing consisted of the following:

       Q.       Have you and your husband divided all of your property?

       A.       Yes.

       Q.       Does the final divorce decree indicate how you have divided your debts?

       A.       Yes.

                                                  9
actually incurred or that such an award is reasonable. See Barry v. Barry, 193 S.W.3d 72, 76

(Tex. App.—Houston [1st Dist.] 2006, no pet.). We therefore sustain Steele’s fourth sub-issue.


                                         CONCLUSION

               We hold that, because Juarez presented no evidence concerning conservatorship, child

support, the parties’ marital assets and debts, or attorney’s fees, the trial court lacked sufficient

evidence upon which to exercise its discretion with regard to these matters.           See Moroch,

174 S.W.3d at 857; Boyd, 131 S.W.3d at 611. This error is apparent on the face of the record.

See Tex. R. App. P. 30; Alexander, 134 S.W.3d at 848. We therefore sustain Steele’s first and

second issues. Accordingly, we affirm only that part of the final decree that grants the parties’

divorce; we reverse the remainder of the final decree and remand the cause to the trial court for

further proceedings.




                                              J. Woodfin Jones, Chief Justice

Before Chief Justice Jones, Justices Puryear and Henson

Affirmed in Part; Reversed and Remanded in Part

Filed: August 19, 2009




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