Property division in a Texas divorce must be just and right. The property division may be “just and right” in a case where one party does not participate, but the court must have sufficient information to use its discretion in dividing the property fairly. A spouse recently challenged the property division following a proceeding in which he did not participate.
One spouse petitioned for divorce in July 2017, alleging insupportability, which is the “no fault” ground for divorce in Texas. He alleged, however, that the respondent had committed fraud on the estate and asked the court to reconstitute the community estate. He also asked the court to confirm certain property as his separate property.
He claimed the respondent was a nonresident of Texas, but the marital residence had most recently been in Texas and he had filed the petition within two years of the date the marital residence ended (which would allow for Texas to have personal jurisdiction over the nonresident respondent). The process server swore in an affidavit that the respondent had been served with the petition in Miami, Florida.
The petitioner listed a home in Florida as community property with a fair market value of $202,066 and secured debt of $231,000. He proposed the Florida property, a bank account worth $9000, $2000 worth of clothing, and a $2000 401k be awarded to him. He proposed that $5,000 worth of furniture, a $2,000 television, a bicycle, $200 worth of clothing and a $50,000 checking account be awarded to the respondent. The petitioner listed a second Florida property and a Florida locksmith business as his own separate property. The petitioner’s inventory did not include account numbers or documentation supporting the claimed values.
The respondent did not file a written response or appear at trial. The petitioner testified he thought the proposed property allocation was fair to both parties.
The trial court questioned the petitioner regarding the property. The petitioner testified he had moved the locksmith business to Houston and that he had it before the marriage. The court awarded the petitioner the home in Florida, the personal property and cash in his possession, and his personal retirement accounts. The court awarded the respondent the personal property and cash in his possession and his own personal retirement accounts. The court ordered that each party would be responsible for debts he incurred after the date of the petition and any debts or taxes to become due on the real and personal property awarded to him, unless otherwise stated in the decree. The decree confirmed the locksmith business and the Florida property where the business had been located were the petitioner’s separate property.
The respondent filed a restricted appeal. To succeed on a restricted appeal, the appellant must show he filed notice within six months of the judgment, was party to the underlying suit, did not participate in the hearing or file post judgment motions, and that error was apparent on the face of the record. The only element at issue here was whether there was an error on the face of the record.
All of the papers on file in the appeal constitute the “face of the record.” In a divorce case, a defendant’s failure to appear is only an admission as to allegations related to residence and domicile.
The respondent argued that the Texas court did not have personal jurisdiction over him because he was a Florida resident. The petitioner had alleged in his pleadings and testified that the jurisdiction requirements were met. The appeals court found that there was nothing on the face of the record contradicting the petitioner’s allegations and testimony, and therefore overruled this issue. The appeals court also rejected the respondent’s argument he had not been properly served for the same reason.
The respondent also argued the trial court abused its discretion by awarding the petitioner all of the real property and by confirming separate property without clear and convincing evidence it was not community property. Although a trial court has broad discretion in dividing community property, it needs sufficient information to do so in a “just and right” manner. In reviewing the sufficiency of the evidence for abuse of discretion, the appeals court must consider whether there was sufficient information before the court to allow it to exercise its discretion and whether the court erred in applying its discretion. The appeals court should reverse the finding only if it is “clearly wrong and manifestly unjust” due to the lack of supporting evidence.
There is a presumption that property possessed by either spouse during the marriage is community property unless there is clear and convincing evidence otherwise. The appeals court found the evidence was insufficient to support the division of the estate and confirmation of separate property. The only evidence was the inventory submitted by the petitioner and his testimony. The appeals court found the inventory was conclusory and did not fully identify the assets and property. It did not include account numbers or any evidence supporting the values the petitioner assigned to the assets.
The petitioner argued his testimony regarding the separate property was uncontradicted and sufficient to establish the property was his separate property. The testimony regarding this property occurred when the court referenced the business and the Houston address, and asked by what means “that” was the petitioner’s separate property. The petitioner said, “It’s before I got married.” The appeals court found this testimony did not clearly identify which assets were his before the marriage or trace the relationship between the business, the Florida business property, and the Houston address. The appeals court reversed the trial court’s judgment and remanded.
Although the appeals court found in favor of the respondent regarding the property division in this case, the best way to protect your rights and assets in a divorce is to properly respond and participate in the case. If you are facing divorce, an experienced Texas divorce attorney can help you through the process. Call McClure Law Group at 214.692.820 to schedule an appointment.
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