Agraz v. Carnley
| Decision Date | 31 August 2004 |
| Docket Number | No. 05-03-01178-CV.,05-03-01178-CV. |
| Citation | 143 S.W.3d 547 |
| Parties | Rudolph J. AGRAZ, Appellant v. Angela Denise CARNLEY, Appellee. |
| Court | Texas Court of Appeals |
Appeal from the 301st Judicial District Court, Dallas County, Susan A. Rankin, J Alma R. Benavides and Charles H. Robertson, Robertson & Railsback, Dallas, for Appellant.
Laura M. Hilliard, Dallas, for Appellee.
Before Justices FITZGERALD, RICHTER, and LANG.
In this restricted appeal, Rudolph J. Agraz (Father) seeks the reversal of the trial court's "Order in Suit to Modify Parent-Child Relationship" and remand of the issues of the modification of child custody, child support, and attorney's fees. In his first issue, Father contends the face of the record reflects error because there is no evidence, or alternatively, factually insufficient evidence, to support the trial court's order to modify. Because Angela Denise Carnley (Mother) failed to present evidence to support her material allegations, we reverse the trial court's order to modify and render judgment that Mother take nothing.
Father and Mother were divorced in 1996. Father was appointed joint managing conservator of the parties' three minor children, A.K., C.J., and C.L., with the right to determine their primary residence. The children lived with Father. Although several modifications occurred, Father remained the parent with primary possession of the children and the right to determine their primary residence.
On March 19, 2003, Mother filed a "Petition to Modify Parent-Child Relationship." The petition stated that the order to be modified was the "Agreed Order in Suit to Modify Parent-Child Relationship" that was rendered on January 26, 2000.1 Mother alleged that (1) the circumstances of the children, joint managing conservator, or other party affected by the order to be modified have materially and substantially changed since that order was rendered, and Mother's appointment as joint managing conservator with the right to establish the children's primary residence would be a positive improvement for them; (2) C.J., who was twelve years old, had filed a writing in the trial court naming Mother as his choice for managing conservator, and Mother's appointment is in the child's best interest; (3) the children's present living environment may endanger their physical health or significantly impair their emotional development, and the appointment of Mother as joint managing conservator with the exclusive right to establish the children's primary residence would be a positive improvement for and in their best interest. Mother requested orders for child support and attorney's fees.
Citation was served upon Father and returned to the court. Father did not answer. The trial court heard the petition on May 20, 2003. Father did not appear. The only evidence offered was Mother's testimony. Pertinent to the allegations in her petition, she was questioned by her counsel as follows:
In addition, the court asked Mother whether there was family violence between Mother and Father, to which Mother replied, "No."
The trial court's order states that the court "finds that the prior order should be modified according to the material allegations stated in the petition." The trial court ordered that Mother, as joint managing conservator, should have the exclusive right to establish the children's primary residence, provided that Father should pay child support of $333.22 per month, provided for possession and access, and awarded attorney's fees and expenses for trial and appeal to Mother's attorney. No findings of fact and conclusions of law were requested or filed.
Father filed a notice of restricted appeal. He also filed a "Motion to Suspend Judgment Being Appealed, and in the Alternative, Motion for Temporary Orders Pending Appeal." Following a hearing on this motion, the trial court suspended its earlier order.
In a restricted appeal, which is a direct attack on a judgment, a party who did not participate at the hearing resulting in the complained-of judgment may appeal. Tex.R.App. P. 30. The requirements of a restricted appeal are (1) a notice of appeal must be filed within six months of the date of the judgment (2) by a party to the suit (3) who did not participate at trial, and (4) the error complained of must be apparent from the face of the record. Tex. Rs.App. P. 26.1(c), 30. Each element is mandatory and jurisdictional and cannot be waived. Osteen v. Osteen, 38 S.W.3d 809, 812 (Tex.App.-Houston [14th Dist.] 2001, no pet.).
We review the granting of a default judgment for an abuse of discretion. Zuniga v. Zuniga, 13 S.W.3d 798, 801 (Tex.App.-San Antonio 1999, no pet.), disapproved of on other grounds by In re Z.L.T., 124 S.W.3d 163, 166 (Tex.2003). If a court acts without reference to any guiding rules and principles or acts arbitrarily and unreasonably, then it has abused its discretion. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex.1985).
Here, Father meets easily the first three requirements respecting a restricted appeal: (1) he is a party to the suit (2) who filed a notice of restricted appeal on August 5, 2003, which is within six months of May 30, 2003, the date of the trial court's order of modification, and (3) he failed to appear at the hearing on Mother's petition to modify. The issue facing us is whether Father meets the fourth element, i.e., is the error of which Father complains apparent from the face of the record. In his first issue on appeal, Father argues error is apparent from the face of the record because there is no evidence, or, alternatively, insufficient evidence, to support the trial court's order regarding modification of child custody, the amount of child support, or the award of attorney's fees.
As a general rule, no evidence is required to support a default judgment because a defendant's failure to appear or answer is taken as an admission of the factual allegations in a plaintiff's petition. Osteen, 38 S.W.3d at 814 (citing Stoner v. Thompson, 578 S.W.2d 679, 682 (Tex.1979)). However, the general rule is limited in a divorce case by section 6.701 of the family code, which provides: "In a suit for divorce, the petition may not be taken as confessed if the respondent does not file an answer." Tex. Fam.Code Ann. § 6.701 (Vernon 1998). Thus, if a respondent in a divorce case fails to answer or appear, the petitioner must present evidence to support the material allegations in the petition. O'Neal v. O'Neal, 69 S.W.3d 347, 349 (Tex.App.-Eastland 2002, no pet.); Ratisseau v. Ratisseau, 44 S.W.3d 695, 697 (); Osteen, 38 S.W.3d at 814. Therefore, a default judgment of divorce is subject to an evidentiary attack on appeal. Osteen, 38 S.W.3d at 814.
In Considine v. Considine, 726 S.W.2d 253 (Tex.App.-Austin 1987, no writ), the Austin Court of Appeals discussed the application of section 3.53 of the family code () to modification orders. The court of appeals acknowledged that there was no family code provision relating to modification of prior orders comparable to section 3.53. Nevertheless, the court decided that the policy considerations underlying the section, which were applicable to original divorce judgments appointing conservators and setting support for and access to children, should obtain also in proceedings to modify like provisions of prior orders. Id. at 254. The court reasoned that the requirement of section 14.08 () for a hearing before modification impliedly required the admission and consideration of proof. This is a substantial difference from taking allegations of the motion for modification "as confessed for want of an answer." Id. (citing section 3.53).
Although section 156.101 regarding modification orders does not explicitly require a hearing, it requires proof of specific factors. Specifically, the version of section 156.101 applicable to this case provided that a court may modify an order or portion of a decree that provides the grounds for the appointment of a conservator of a child, the terms and conditions of conservatorship, or the possession of or access to a child, if modification would be in the "best interest of the child" and
(1) the circumstances of the child, a conservator, or other party affected by the order have materially and...
To continue reading
Request your trial
-
Suarez v. Suarez, No. 13-04-108-CV (TX 5/4/2006)
...appearing party must nonetheless produce evidence proving her case. See Stoner v. Thompson, 578 S.W.2d 679, 682 (Tex. 1979); Agraz v. Carnley, 143 S.W.3d 547, 552 (Tex. App.-Dallas 2004, no Melissa filed an unsworn inventory of community and personal assets with the court when she appeared ......
-
Zeifman v. Michels
...Supp.2005). The party seeking modification has the burden to establish these elements by a preponderance of the evidence. Agraz v. Carnley, 143 S.W.3d 547, 552 (Tex.App.-Dallas 2004, no pet.); In re T.D.C., 91 S.W.3d 865, 871 (Tex.App.-Fort Worth 2002, pet. denied); Considine v. Considine, ......
-
Gonzalez v. Gonzalez
...E.M.V., 312 S.W.3d at 291. Accordingly, a default judgment of divorce is subject to an evidentiary attack on appeal. Agraz v. Carnley, 143 S.W.3d 547, 552 (Tex.App.-Dallas 2004, no pet.); see also Norman Commc'ns, 955 S.W.2d at 270 (appellant in restricted appeal may challenge legal suffici......
-
Patton Children's Trust v. Hamlin, No. 07-07-0488-CV (Tex. App. 8/20/2008)
...819 (Tex.App.-El Paso 1987, writ ref'd n.r.e.). We review the granting of a default judgment for an abuse of discretion.6 Agraz v. Carnley, 143 S.W.3d 547, 551 (Tex.App.-Dallas 2004, no pet.). We do not indulge the usual presumption of the validity of the judgment; Lorentzen v. Kliesing, 81......