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Successful Restricted Appeal Based on Lack of Evidence in Texas Divorce Proceeding

When a respondent fails to answer a Texas divorce petition, the petitioner may seek a default judgment granting the divorce.  However, unlike in other types of cases, the unanswered allegations in a divorce petition are not deemed confessed.  The petitioner must present evidence that supports the material allegations.  If the trial court makes findings without sufficient supporting evidence, the non-participating party may have a right to appeal in certain circumstances, despite his or her failure to participate.

In a recent case, a husband filed a restricted appeal of a final divorce decree.  The husband did not answer the divorce petition.  Only the wife appeared and testified at the final hearing.  The court entered a divorce decree that designated conservatorship over the children, addressed visitation, ordered the husband to pay child support, and divided the community estate.  To succeed on a restricted appeal, the husband must show that he filed notice of the restricted appeal within six months of the judgment or order, he was party to the suit but did not participate in the hearing, and he did not file a timely post-judgment motion, request findings of fact and conclusion of law, or file notice of appeal within the required time frames.  Furthermore, he must also show that there is an error apparent on the record’s face.  The appeals court may therefore only consider evidence that was before the trial court.

The appeals court found the husband had met the requirements for the restricted appeal.  He had timely filed his restricted appeal.  He had not answered the petition or participated in the hearing.  Additionally he had not filed a post-judgment motion, request for findings and conclusions, or appeal.  Although a hearing had been held by the trial court, there was no evidence regarding the value of the marital estate, the income and debts of the parties, the children’s relationship with their parents, the children’s ages, or the children’s residences.  The appeals court found the trial court had made factually based decisions without supporting evidence.  The trial court made decisions relating to conservatorship and visitation.  It ordered the husband to pay child support.  The court also divided the community estate.  The appeals court therefore found there was error apparent on the face of the record.

The appeals court therefore reversed the divorce decree as to everything except ending the marriage and remanded to the trial court.

In this case, the husband was able to successfully appeal the divorce decree despite not answering the petition or participating in the proceedings.  In other cases, however, the trial court may hear enough evidence to support a decision even if one party does not participate.  In such cases, a restricted appeal would not be successful and the non-participating party would not have any recourse.  If you are facing a divorce, seek a skilled Texas divorce attorney promptly to ensure you do not miss your opportunity to participate in the proceedings, present evidence, and challenge the evidence offered by the other party.  Call McClure Law Group at 214.692.8200 to schedule a consultation.

More Blog Posts:

Default Judgment in a Texas Divorce

Texas Appeals Court Reverses Property Division Due to Lack of Evidence

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