In The
Court of=20
Appeals
For The
First =
District of=20
Texas
NO.=20
=
01=E2=80=9305=E2=80=9300551=E2=80=93CV
DAN R. =
BARRY,=20
Appellant
V.
TERESA =
BARRY,=20
Appellee
On =
Appeal from the=20
312th District Court
Harris =
County,=20
Texas
Trial =
Court Cause=20
No. 2004-06225
O P I =
N I=20
ON
<=
/SPAN>On=20
February 6, 2004, Teresa Barry, appellee, filed for divorce from =
Dan=20
Barry, appellant. Dan did not file a response in time, and a =
default=20
divorce decree was entered. On June 1, 2005, Dan filed a notice of =
restricted appeal.
<=
/SPAN>In=20
three points of error, Dan argues that (1) he is entitled to a =
restricted=20
appeal; (2) the evidence was insufficient to support the relief =
granted in=20
the divorce decree; and (3) the division of property was not just =
and=20
right.
=
We=20
reverse and remand.
Background
<=
/SPAN> On=20
February 6, 2004, Teresa Barry, appellee, filed for divorce from =
Dan=20
Barry, appellant. Teresa amended the petition once, but Dan did =
not=20
respond within the required time. On December 6, 2004, a hearing =
was held=20
and a default divorce decree was entered. Fourteen days later, Dan =
filed=20
an original answer to Teresa=E2=80=99s petition. On June 1, 2005, =
Dan filed a=20
notice of restricted appeal.
Right to Restricted=20
Appeal
=
In=20
his first point of error, Dan argues that he meets the =
requirements for a=20
restricted appeal.
=
A=20
party filing a restricted appeal must demonstrate the following =
elements:=20
(1) appellant appealed within six months after the judgment was =
rendered;=20
(2) the appellant was a party to the suit; (3) the appellant did =
not=20
participate in the hearing that resulted in the judgment =
complained of;=20
(4) the appellant did not timely file a post-judgment motion, =
request for=20
findings of fact and conclusions of law, or a notice of appeal =
within the=20
time permitted by Rule 26.1(c) of the Texas Rules of Appellate =
Procedure;=20
and (5) error appears on the face of the record. See Tex. R. App. P. 30; =
Alexander=20
v. Lynda=E2=80=99s Boutique, 134 S.W.3d 845, 848 (Tex. 2004). =
Before we can=20
consider the fifth element in the remaining points of error, we =
determine=20
whether the first four elements apply.
=
The=20
divorce decree was signed by the trial court on December 6, 2004. =
Dan=20
filed a notice of appeal on June 1, 2005=E2=80=94within six months =
after the=20
judgment was rendered. The suit involved Teresa bringing an action =
for=20
divorce against Dan; thus, he was a party to the suit. Dan was not =
involved in any actions prior to the hearing and neither he nor =
his lawyer=20
were at the hearing.
=
Teresa=20
argues that Dan does not satisfy the fourth element required for a =
restricted appeal. Fourteen days after the hearing, Dan filed =
=E2=80=9CRespondent=20
Dan Barry=E2=80=99s Original Answer to Petition for =
Divorce.=E2=80=9D Teresa argues that=20
=E2=80=9Cthis post-judgment =E2=80=98answer=E2=80=99 is the =
substantive equivalent of a=20
=E2=80=98post-judgment motion,=E2=80=99 and thus a restricted =
appeal is=20
precluded.=E2=80=9D
=
In=20
determining the nature of an instrument, courts look to its =
substance, not=20
to the form of its title or caption. Rush v. Barrios, 56 =
S.W.3d 88,=20
93 (Tex. App.=E2=80=94Houston [14th Dist.] 2001, pet. denied). The =
prayer for=20
relief in Dan=E2=80=99s filing asked that Teresa take nothing by =
her suit and that=20
Dan take all relief requested in the filing. Teresa argues that =
Dan=E2=80=99s=20
prayer for relief would require a modification in the divorce =
decree, and=20
therefore Dan=E2=80=99s filing must be interpreted as a =
post-judgment=20
motion.
=
In=20
order to get the judgment set aside, Dan would have had to have =
filed a=20
motion for new trial. Tex. R. Civ.=20
P. 320. A motion for new trial must, by its very nature, =
seek to=20
set aside an existing judgment and request relitigation of the =
issues.=20
Finley v, J.C. Pace Ltd., 4 S.W.3d 319, 320 (Tex. =
App.=E2=80=94Houston [1st=20
Dist.] 1999, no pet.). If an instrument does not meet these =
minimum=20
requirements, it is not a motion for new trial. Mercer v. =
Band, 454=20
S.W.2d 833, 836 (Tex. Civ. App.=E2=80=94Houston [14th Dist.] 1970, =
no writ). Dan=E2=80=99s=20
prayer does not meet these requirements.
=
A=20
motion for new trial after a default judgment requires a showing =
that (1)=20
the failure of the defendant to answer was not intentional or the =
result=20
of conscious indifference; (2) the defendant alleges a meritorious =
defense; and (3) the motion for new trial is filed at a time when =
its=20
granting will not cause delay or otherwise work injury to the =
plaintiff.=20
Vannerson v. Vannerson, 857 S.W.2d 659, 663 (Tex. =
App.=E2=80=94Houston [1st=20
Dist.] 1993, writ denied) (citing Craddock v. Sunshine Bus =
Lines,=20
Inc., 133 S.W.2d 124, 126 (Tex. 1939)). The body of =
Dan=E2=80=99s filing=20
consists of only a general denial and a request for =
attorney=E2=80=99s=20
fees.
=
We=20
hold that Dan=E2=80=99s untimely filing of an answer to =
Teresa=E2=80=99s petition does not=20
change the nature of the instrument into a post-judgment motion. =
We=20
further hold that Dan satisfies the first four requirements of a=20
restricted appeal.
Insufficient =
Evidence
=
In=20
his second point of error, Dan argues the evidence was =
insufficient to=20
support the relief granted in the divorce =
decree.
A. Standard=20
of Review
=
In=20
reviewing a no-evidence point of error, we consider only the =
evidence and=20
inferences tending to support the trial court=E2=80=99s finding =
and disregard all=20
contrary evidence and inferences; anything more than a scintilla =
of=20
evidence is legally sufficient to support the finding. Wal-Mart =
Stores,=20
Inc. v. Miller, 102 S.W.3d 706, 709 (Tex. 2003). When we review =
factual=20
sufficiency, we conduct a neutral review of all the evidence. =
Cain v.=20
Bain, 709 S.W.2d 175, 176 (Tex. 1986). We will reverse for =
factual=20
insufficiency only if the ruling is so against the great weight =
and=20
preponderance of the evidence as to be manifestly erroneous or =
unjust.=20
Nelson v. Najm, 127 S.W.3d 170, 174 (Tex. =
App.=E2=80=94Houston [1st Dist.]=20
2003, pet. denied).
B. Analysis<=
/SPAN>
=
Dan=20
challenges the proof necessary (1) to establish the =
statutory=20
residence and domicile requirements and (2) to support the =
division of=20
property, the creation of medical obligations for an adult child, =
and the=20
assessment of attorney=E2=80=99s fees.
=
1. Residence =
and Domicile Requirements
=
Dan=20
argues that there is insufficient evidence to meet the =
requirements of=20
Rule 6.301 of the Texas Family Code. Rule 6.301 requires that, =
before a=20
suit for divorce can be filed in any particular county, one of the =
parties=20
must have been a domiciliary of Texas for the preceding six months =
and a=20
resident of the county for the preceding 90 days. Tex. Fam. Code Ann. =
=C2=A7 6.301=20
(Vernon 1998).
=
At=20
trial, Teresa testified that Dan had lived in Texas at least six =
months=20
and in Harris county at least 90 days. This is some evidence that =
Rule=20
6.301 has been satisfied. There is no contrary evidence. We hold =
that=20
there is no error on the face of the record and that the evidence =
was=20
legally and factually sufficient to meet the statutory=20
requirements.
=
2. Division=20
of Property, Medical Obligations, and Attorney=E2=80=99s=20
Fees
=
Dan=20
argues that the evidence was insufficient to support the division =
of=20
property, the establishment of Dan=E2=80=99s obligation to provide =
medical support=20
for his adult child, and the assessment of attorney=E2=80=99s =
fees. Teresa=20
concedes error for each of these points, and we =
agree.
=
=E2=80=9CIn=20
a suit for divorce, the petition may not be taken as confessed if =
the=20
respondent does not file an answer.=E2=80=9D Tex. Fam. Code Ann. =
=C2=A7 6.701=20
(Vernon 1998). Teresa was obligated to present evidence at trial =
of the=20
material allegations in her petition. Agraz v. Carnley, 143 =
S.W.3d=20
547, 552 (Tex. App.=E2=80=94Dallas 2004, no pet.). As to the =
division of property,=20
the testimony at trial only showed that she requested the division =
of=20
property as it was given, without testifying as to how this was a =
just and=20
right division. This was insufficient. Wilson v. Wilson, =
132 S.W.3d=20
533, 538 (Tex. App.=E2=80=94Houston [1st Dist.] 2004, no pet.) =
(holding that=20
=E2=80=9C[g]iven the dearth of evidence identifying, describing, =
and valuing the=20
community estate . . . there is insufficient evidence to support =
the=20
division of assets=E2=80=9D). The same is true for the =
establishment of Dan=E2=80=99s=20
medical obligations for the adult child.
=
A=20
party does not have a statutory right to attorneys=E2=80=99 fees =
in a divorce case=20
which does not involve a child custody determination. Beard v.=20
Beard, 49 S.W.3d 40, 64 (Tex. App.=E2=80=94Waco 2001, pet. =
denied). Assessment=20
of attorneys fees may be a part of the just and right division of=20
property. Sandone v. Miller-Sandone, 116 S.W.3d 204, 208 =
(Tex.=20
App.=E2=80=94El Paso 2003, no pet.). Because we reverse the =
division of property=20
and because the evidence supporting attorney=E2=80=99s fees was =
insufficient, we=20
include assessment of attorney=E2=80=99s fees in the portion of =
the judgment to be=20
reversed.
=
We=20
sustain Dan=E2=80=99s second point of error. Because Dan=E2=80=99s =
third point of error=20
would not provide greater relief than what we currently grant, we =
need not=20
address that point of error.
Motions Carried with=20
Case
=
This=20
Court carried two of Teresa=E2=80=99s motions with this case. The =
first asked this=20
court to dismiss for lack of jurisdiction. The arguments in this =
motion=20
matched the arguments discussed and ruled on above in =
appellant=E2=80=99s first=20
point of error. We therefore deny this motion as moot. The other =
motion,=20
supplemented and then amended, asked the court =
to dismiss=20
the case because of Dan=E2=80=99s failure to attend a mediation =
that the parties=20
agreed to attend. We deny the motion.
Conclusion
=
We=20
reverse the judgment of the trial court and remand for a =
redivision of the=20
marital estate, including the establishment of the medical =
obligations for=20
the adult child and apportionment of attorneys=E2=80=99 fees. The =
motions carried=20
with the case are denied.
=
&=
nbsp; &n=
bsp; &nb=
sp; &nbs=
p; =
; Laura=20
Carter Higley
=
&=
nbsp; &n=
bsp; &nb=
sp; &nbs=
p; =
; Justice
Panel consists of =
Justices=20
Taft, Higley, and=20
Bland.