Gonzalez v. Gonzalez

679 S.W.3d 221

George GONZALEZ, Appellant

v.Narcisa GONZALEZ, Appellee

NO. 01-22-00550-CV

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

Opinion issued August 29, 2023

On Appeal from the 245th District Court, Harris County, Texas, Trial Court Case No. 2021-38029

Sallee S. Smyth, for Appellant.

Julio A. Joglar, Roberto M. Hinojosa, Houston, for Appellee.

Before the court en banc.

EN BANC OPINION

April L. Farris, Justice

Appellee Narcisa Gonzalez sought a divorce from appellant George Gonzalez. George did not answer or appear in the divorce proceeding, and the associate judge rendered a default judgment of divorce. In the divorce decree, the court divided the parties’ community estate.

In this restricted appeal, George argues that the trial court erred in its property division because the court had before it insufficient evidence to make a just and right division of the community estate. In making this argument, George contends that neither the trial court nor this Court can consider Narcisa’s sworn inventory, which was filed with the trial court but not admitted into evidence at trial. This Court has previously held that a trial court may take judicial notice of the contents of a filed inventory even if that inventory has not been admitted into evidence. See Vannerson v. Vannerson, 857 S.W.2d 659, 670-71 (Tex. App.—Houston [1st Dist.] 1993, writ denied). George points out that over the past three decades, several intermediate appellate courts have disagreed with Vannerson and held that taking judicial notice of the contents of an inventory that has not been admitted into evidence is inappropriate.

[1] Although a panel opinion has not yet issued, en banc consideration was requested and granted to address the above holding in Vannerson. See Tex. R. App. P. 41.2(c) ("If a vote is requested and a majority of the court’s members vote to consider or reconsider the case en banc, the en banc court will consider or reconsider the case. Otherwise, a panel of the court will consider the case."). After careful and deliberate consideration, we overrule the portion of Vannerson holding that a trial court may take judicial notice of the contents of and rely upon an inventory that is on file with the court but that has not been admitted into evidence. We hold that a trial court may not take judicial notice of the contents of an inventory that has not been admitted into evidence, so the sworn inventory cannot support the judgment.

We affirm in part and reverse and remand in part.

Background

George and Narcisa married in 1988, and they have three adult children. Narcisa filed for divorce in June 2021, alleging that the marriage had become insupportable, George had committed adultery, and George was guilty of cruel treatment. Narcisa requested that she receive a disproportionate share of the marital estate in the trial court’s property division.

George was served with citation on July 17, 2021. He did not, however, file an answer or otherwise appear in the divorce proceeding.

In September 2021, Narcisa filed a sworn inventory, appraisement, and proposed property division. She listed seven assets, including the marital residence and two vehicles, and provided values for the assets and any applicable outstanding debts related to the assets. One of the assets was a 401(k) plan "with RSC" in George’s name. Narcisa stated that the value of this 401 (k) plan was "unknown." Narcisa proposed that the court award her the residence, the vehicle in her possession, and the furniture and electronics in her possession.

The associate judge held a default hearing in January 2022. At the hearing, the court took judicial notice of its file, including the citation, return of service, and Narcisa’s inventory. Narcisa testified that the marriage had become insupportable and there was no reasonable expectation of reconciliation. She did not testify to any specific facts relevant to fault in the breakup of the marriage.

Narcisa testified that the inventory she had filed with the court contained her proposal for dividing the assets and liabilities of the marital estate. Her counsel did not offer the inventory into evidence. She agreed with her counsel that she could not verify the balance of George’s 401 (k) plan because George did not answer the lawsuit and he "has always kept [her] in the dark regarding how much he has in that plan." She believed that approval of her proposed property division would be fair and equitable to both her and George.

The trial court asked Narcisa whether there was a mortgage on the home, and she responded that there was not. When asked by the court how much was believed to be in George’s retirement account, Narcisa’s counsel stated: "[S]everal years ago there were over a hundred thousand dollars in that, but—which is—I suspect that he has enough to balance the equity in the house." The trial court granted the divorce and approved Narcisa’s proposed property division.

That same day, the associate judge signed a final decree of divorce. The decree dissolved the parties’ marriage based on insupportability. The court awarded Narcisa the parties’ marital residence, all furniture and personal effects in Narcisa’s possession, and the vehicle in her possession. The court awarded George all furniture and personal effects in his possession, the vehicle in his possession, and his 401 (k) plan.

George did not file any post-judgment motions. In July 2022, he filed a notice of restricted appeal. This appeal followed.

Division of Community Estate

In his sole issue on appeal,¹ George argues that the trial court erred in dividing the parties’ community estate because the court did not have sufficient information before it to make a just and right division of the estate. He also argues that because Narcisa did not offer her sworn inventory into evidence, the court could not take judicial notice of this document or rely on it in making the property division. Alternatively, he argues that insufficient evidence supports the property division even if the court could consider the sworn inventory.

A. Standard of Review in Restricted Appeal

[2, 3] A restricted appeal is 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. See Tex. R. App. P. 30; Pike-Grant v. Grant, 447 S.W.3d 884, 886 (Tex. 2014) (per curiam). To prevail on a restricted appeal, the appellant must establish that (1) he filed notice of the restricted appeal within six months after the judgment was signed; (2) he was a party to the underlying lawsuit; (3) he did not participate in the hearing that resulted in the complained-of judgment, and he did not timely file any post-judgment motions or requests for findings of fact and conclusions of law; and (4) error is apparent on the face of the record. Pike-Grant, 447 S.W.3d at 886; Alexander v. Lynda’s Boutique, 134 S.W.3d 845, 848 (Tex. 2004).

[4, 5] The only disputed factor here is whether the complained-of error is apparent on the face of the record. The "face of the record" consists "of all the 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) (per curiam); Cohen v. Bar, 569 S.W.3d 764, 770 (Tex. App.—Houston [1st Dist.] 2018, pet. denied). On restricted appeal, we can review whether the evidence was sufficient to support the judgment, but error must appear on the face of the record to be reversible. Wilson v. Wilson, 132 S.W.3d 533, 536 (Tex. App.—Houston [1st Dist.] 2004, pet. denied); see Norman Commc’ns, 955 S.W.2d at 270.

[6, 7] Generally, no evidence is required to support a default judgment, and a defendant’s failure to appear or answer is taken as admission of the factual allegations in the plaintiffs petition. Cohen, 569 S.W.3d at 771. However, this rule is "narrower" in the context of a default divorce proceeding, Id.; Tex. Fam. Code § 6.701 ("In a suit for divorce, the petition may not be taken as confessed if the respondent does not file an answer."). A defendant’s failure to answer or appear in a divorce proceeding "is taken only as an admission of the allegations in the petition regarding residence and domicile," but such failure does not admit the material allegations in the plaintiff’s petition. Cohen, 569 S.W.3d at 770.

[8] When a divorce defendant defaults, the petitioner must still present evidence to support the material allegations in the divorce petition. Vazquez v. Vazquez, 292 S.W.3d 80, 83–84 (Tex. App.—Houston [14th Dist.] 2007, no pet.). Thus, despite George’s failure to answer or appear, Narcisa still bore the burden to prove the allegations in her petition concerning the division of the community estate. See Fuentes v. Zaragoza, 555 S.W.3d 141, 163 (Tex. App.—Houston [1st Dist.] 2018, no pet.) ("The petitioner—even in a default case—must provide sufficient evidence to permit a just and right division of the marital estate.").

B. Just and Right Division of Community Estate

[9–11] In a divorce decree, the trial court shall order a division of the parties’ community estate "in a manner that the court deems just and right, having due regard for the rights of each party and any children of the marriage." Tex. Fam. Code § 7.001. Each spouse bears the burden to present sufficient evidence of the value of the community estate to enable the trial court to make a just and right division. Fuentes, 555 S.W.3d at 162. The trial court is not required to divide the community estate equally, but it must be divided equitably. Sandone v. Miller-Sandone, 116 S.W.3d 204, 207 (Tex. App.—El Paso 2003, no pet.). The court may order an unequal division of the estate as long as a reasonable basis for doing so exists. Fuentes, 555 S.W.3d at 162.

[12–14] We review property division issues for an abuse of discretion, beginning with the presumption that the trial court properly exercised its discretion. Id. The trial court has broad...