Ayala v. Ayala

• Decision Date: 26 August 2011
• Docket Number: No. 01–09–00785–CV.,01–09–00785–CV.
• Citation: 387 S.W.3d 721
• Parties: Juan AYALA, Appellant v. Blanca Edit AYALA, Appellee.
• Court: Texas Court of Appeals

387 S.W.3d 721

Juan AYALA, Appellant

v.Blanca Edit AYALA, Appellee.

No. 01–09–00785–CV.

Court of Appeals of Texas, Houston (1st Dist.).

July 21, 2011.

Rehearing Overruled Aug. 26, 2011.

Kelly C. Heallen, Craig & Heallen, L.L.P., Claudia P. Avalos, Avalos & Associates, Houston, TX, for Appellant.

Timothy A. Hootman, Houston, TX, for Appellee.

Panel consists of Justices KEYES, SHARP, and MASSENGALE.

OPINION

EVELYN V. KEYES, Justice.

In this restricted appeal, appellant, Juan Ayala (Juan), appeals from a default divorce decree dissolving his marriage to appellee, Blanca Edit Ayala (Blanca). In nine issues, Juan contends that (1) he is entitled to review by restricted appeal and that the evidence is insufficient to support: (2) the imposition of retroactive child support; (3) the assessment of child support; (4) the imposition and assessment of spousal maintenance; (5) the grant of sole managing conservatorship in favor of Blanca; (6) the trial court's property division; (7) the award of attorney's fees; (8) the grant of divorce on the grounds of cruelty and adultery; and (9) the amount of monthly child support and spousal support payments. We affirm.

Background

Blanca and Juan were married in 1985. They had four children together during their marriage. Blanca and Juan separated in 1998, and from then on he lived with another woman. Blanca remained in their home, paying all the bills and raising the children with no financial help from Juan. Blanca is diabetic and blind and has had to look to her children for help with the home expenses because she is unable to work.

In March 2008, Blanca filed for a divorce from Juan. By that time, the only minor child left in the home was F.A., age fourteen. Following entry of a series of temporary orders and a hearing in July 2008, the trial court entered an agreed temporary order that awarded sole managing conservatorship of F.A. to Blanca. The agreed order also awarded Blanca temporary support of $150.00 per week, possession of the couple's home, and visitation as agreed by the parties, and it continued all injunctions listed in the immediately prior temporary restraining order. The trial court also entered an agreed injunction against Juan's going to the family home.

In October 2008, Juan counter-petitioned for divorce. The case was set for trial in November 2008, then re-set by agreement of the parties for March 27, 2009. Blanca and her attorney appeared for trial on that date. Neither Juan nor his attorney was present. Blanca presented evidence that Juan had notice of the hearing. The trial court held a default hearing, after which it rendered its decision, granting a default judgment to Blanca.

The final decree granted the divorce on grounds of insupportability, cruelty, and adultery; assessed child support at a rate of $650 a month; imposed a judgment against Juan for retroactive child support in the amount of $61,498, to be paid at $150 a month; imposed spousal support for three years at a rate of $780 per month; awarded Blanca her attorney's fees; divided the parties' marital estate; and named Blanca as sole managing conservator of F.A., with visitation as mutually agreed upon. The trial court signed the final decree of divorce on April 28, 2009.

Four months later, after not filing any post-judgment motions or notice of appeal, Juan filed a notice of restricted appeal from this judgment.

Restricted Appeal

In his first issue, Juan contends that he is entitled to a restricted appeal from the trial court's final decree of divorce. Juan's second through eighth issues challenge the sufficiency of the evidence to support the judgment. Juan claims that the record reveals on its face that there is insufficient evidence to support several aspects of the trial court's judgment and that, therefore, the trial court abused its discretion in making its judgment. His ninth issue contends,in the alternative, that the trial court erred in assessing child support and spousal support payments in excess of 50% of his net monthly income.

We construe Juan's contentions as one issue with eight sub-parts—whether the trial court abused its discretion in entering the final decree of divorce because the evidence was insufficient to support the judgment.

Standard of Review

A restricted appeal is a procedural device available to a party who did not participate, either in person or through counsel, in a proceeding that resulted in a judgment against the party. Tex.R.App. P. 30. It constitutes a direct attack on a default judgment. Id.; Gen. Elec. Co. v. Falcon Ridge Apartments, Joint Venture, 811 S.W.2d 942, 943 (Tex.1991). A party filing a restricted appeal must demonstrate that (1) he appealed within six months after the judgment was rendered, (2) he was a party to the suit, (3) he did not participate in the actual trial of the case that resulted in the judgment complained of, (4) he did not timely file a post-judgment motion, a request for findings of facts and conclusions of law, or a notice of appeal within the time permitted by Rule 26.1(c) of the Texas Rules of Appellate Procedure, and (5) error appears on the face of the record. Alexander v. Lynda's Boutique, 134 S.W.3d 845, 848 (Tex.2004); Vazquez v. Vazquez, 292 S.W.3d 80, 83 (Tex.App.-Houston [14th Dist.] 2007, no pet.); Barry v. Barry, 193 S.W.3d 72, 74 (Tex.App.-Houston [1st Dist.] 2006, no pet.). The face of the record includes all papers on file in the appeal, including the clerk's record and any reporter's record. Norman Commc'ns v. Tex. Eastman Co., 955 S.W.2d 269, 270 (Tex.1997); DSC Fin. Corp. v. Moffitt, 815 S.W.2d 551, 551 (Tex.1991); Vazquez, 292 S.W.3d at 83.

In a suit for divorce, the petition is not taken as confessed if the respondent does not file an answer. Vazquez, 292 S.W.3d at 83 (citing Tex. Fam.Code Ann. § 6.701 (Vernon 1998)). Therefore, if the respondent in a divorce case fails to answer or appear, the petitioner must still present evidence to support the material allegations in the petition. Id. at 83–84. Because a restricted appeal affords an appellant the same scope of review as an ordinary appeal, the appellant may challenge the legal and factual sufficiency of the record. See Norman Commc'ns, 955 S.W.2d at 270;Miles v. Peacock, 229 S.W.3d 384, 386–87 (Tex.App.-Houston [1st Dist.] 2007, no pet.); see also Vazquez, 292 S.W.3d at 83–84 (holding that default judgment granting divorce is subject to evidentiary attack on appeal).

Most of the appealable issues in a family law case are evaluated under an abuse of discretion standard. In re A.B.P., 291 S.W.3d 91, 95 (Tex.App.-Dallas 2009, no pet.). A trial court abuses its discretion when it acts in an arbitrary or unreasonable manner or when it acts without reference to any guiding principles. Worford v. Stamper, 801 S.W.2d 108, 109 (Tex.1990); Miles, 229 S.W.3d at 388. Under this standard, legal and factual sufficiency of the evidence are not independent grounds of error, but rather are relevant factors in assessing whether the trial court abused its discretion. Stamper v. Knox, 254 S.W.3d 537, 542 (Tex.App.-Houston [1st Dist.] 2008, no pet.). A trial court does not abuse its discretion when there is some evidence of a substantive and probative character to support the trial court's judgment. Id.

In reviewing a no-evidence issue, we consider only the evidence and inferences tending to support the trial court's findings, and we disregard all contrary evidence and inferences. See Wal–Mart Stores, Inc. v. Miller, 102 S.W.3d 706, 709 (Tex.2003); Vazquez, 292 S.W.3d at 83 (applying standard to restricted appeal from default divorce decree); Barry, 193 S.W.3d at 75. Anything more than a scintilla of evidence is legally sufficient to support the trial court's finding. Vazquez, 292 S.W.3d at 83. When we review a factual sufficiency challenge, we conduct a neutral review of all the evidence. Barry, 193 S.W.3d at 75. We will reverse for factual insufficiency only if the ruling is so against the great weight and preponderance of the evidence as to render it manifestly erroneous or unjust. Id.

Juan's Sub–Issues

1. Evidence to Support Retroactive Child Support Judgment

In his second issue, Juan claims that the evidence is insufficient to support the trial court's award of $61,498 as retroactive child support.

A trial court may order a parent to pay retroactive child support. Tex. Fam.Code Ann. §§ 154.009, 154.131 (Vernon 2008). In doing so, the court shall apply the child support guidelines. Id. § 154.009(b). It shall consider the net resources of the obligor during the relevant time period. Id. § 154.131(b). It shall also consider whether (1) the mother of the child had made any previous attempts to notify the obligor of his paternity or probable paternity; (2) the obligor had knowledge of his paternity or probable paternity; (3) the order of retroactive child support will impose an undue financial hardship on the obligor or the obligor's family; and (4) the obligor has provided actual support or other necessaries before the filing of the action. Id. § 154.131(b). It is presumed that a court order limiting the amount of retroactive child support to an amount that does not exceed the total amount of support that would have been due for the four years preceding the date the petition seeking support was filed is reasonable and in the best interest of the child. See id. § 154.131(c). This presumption may be rebutted by evidence that (1) the obligor knew or should have known that he was the father of the child for whom support is sought and (2) he sought to avoid the establishment of a support obligation for the child. Id. § 154.131(d)(1)-(2).

The Family Code instructs the trial court to calculate net resources for the purposes of determining child support liability. Id.§ 154.062 (Vernon 2008). Accordingly, there must be some evidence of a substantive and probative character of net resources in order for the court to discharge this duty. Newberry v. Bohn–Newberry, ...