In the Interest of M.B.G. and A.T.G., Children v. the State of Texas

Affirmed in part; Reversed and Remand in part and Opinion Filed May 2,
2024

In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-23-00505-CV

IN THE INTEREST OF M.B.G. AND A.T.G., CHILDREN

On Appeal from the 468th Judicial District Court
Collin County, Texas
Trial Court Cause No. 468-56348-2022

MEMORANDUM OPINION
Before Justices Partida-Kipness, Nowell, and Smith
Opinion by Justice Nowell
Mother appeals the trial court’s final decree of divorce. She argues the trial

court abused its discretion because the evidence is legally and factually insufficient

to support the division of martial property and to support certain orders regarding

the children. She also argues the trial court abused its discretion by denying her

motion for new trial.

We conclude the trial court abused its discretion to the extent it (1) divided

the martial property, (2) ordered neither party to pay child support, and (3) denied

Mother a new trial on the designation of Father as the joint managing conservator

with the right to designate the primary residence within Collin County, Texas. We
reverse the judgment as to these issues and remand to the trial court for further

proceedings. We affirm the judgment in all other respects.

Background

Mother and Father married in 2005 and have two teenage children.1 On

October 26, 2022, Father filed a pro se petition for divorce using an internet form.

An affidavit of service states the original petition for divorce was delivered in person

to Mother on February 7, 2023. The record, however, does not reflect that Mother

answered.

On March 8, 2023, the trial court conducted a prove-up hearing in which

Father was represented by counsel. The trial court entered a divorce decree, stating

Mother was properly served but “has wholly made default.” Relevant to this appeal,

the default decree (1) named Mother and Father joint managing conservators of the

children with Father having the exclusive right to designate the children’s primary

residence within Collin County, Texas; (2) ordered that “no party will owe child

support to the other party”; and (3) awarded Mother the marital residence, subject to

the “Special Provisions Regarding Marital Residence.”

On April 5, 2023, Mother filed a motion for new trial. After a hearing, the

trial court denied the motion. This appeal followed.

1
The record indicates one child has now reached the age of eighteen and is no longer subject to the
divorce decree. The second child will turn eighteen in October 2024.
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New Trial

Mother argues the trial court abused its discretion by denying her motion for

new trial because she satisfied the elements of Craddock v. Sunshine Bus Lines, Inc.,

133 S.W.2d 124 (Tex. 1939) (explaining party entitled to new trial if she

demonstrates the failure to answer was not intentional or the result of conscious

indifference, but was a mistake or an accident; she establishes a meritorious defense;

and granting a new trial will not cause delay or injury to other party). She separately

argues she is entitled to a new trial because Father’s petition does not support the

default judgment divorce to the extent it granted Father the exclusive right to

designate the primary residence of the children and limited the geographic restriction

to Collin County. Father did not file a response.

We review a trial court’s ruling on a motion for new trial for an abuse of

discretion. Litman v. Litman, 402 S.W.3d 280, 285 (Tex. App.—Dallas 2013, pet.

denied). The trial court has broad discretion to grant or deny a new trial, and the

trial court’s action will not be disturbed on appeal unless the trial court acted in an

arbitrary or unreasonable manner or without reference to guiding rules and

principles. Id.

The first Craddock element, conscious indifference, is dispositive to part of

our analysis. “Conscious indifference” involves behavior such as a “pattern of

ignoring deadlines and warnings from the opposing party.” Levine v. Shackelford,

Melton, & McKinley, L.L.P., 248 S.W.3d 166, 168–69 (Tex. 2008) (per curiam). It

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includes “the failure to take some action which would seem indicated to a person of

reasonable sensibilities under the same or similar circumstances.” Id. at *6 (quoting

Young v. Kirsch, 814 S.W.2d 77, 81 (Tex. App.—San Antonio 1991, no writ)). The

trial court may consider the knowledge and acts of the defaulting party in

determining whether the failure to appear was due to intentional disregard or

conscious indifference. In Interest of A.T., No. 05-16-00539-CV, 2017 WL

2351084, at *10 (Tex. App.—Dallas May 31, 2017, no pet.) (mem. op.).

The movant has the burden to negate the existence of conscious indifference.

Id. In contravention to the movant’s case, the nonmovant may present evidence

tending to show intentional or consciously indifferent conduct creating a fact

question for the trial court to determine. Id. In acting as fact-finder, the trial court

resolves conflicts in the evidence and is the sole judge of the credibility of the

witnesses and the weight to be given their testimony. In Interest of J.O.A., No. 14-

14-00968-CV, 2016 WL 1660288, at *5 (Tex. App.—Houston [14th Dist.] Apr. 26,

2016, no pet.) (mem. op.).

In Mother’s verified motion for new trial, she argued that after she received

the divorce petition, Father told her to throw it away and wait to hear from his lawyer

regarding mediation. She reached out to Father on several occasions for a status

update, and he continued telling her to be patient while his lawyer gathered financials

and other information. He told her that she did not need a lawyer and did not need

to go to court unless she disagreed with getting a divorce. She alleged, “This was

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the reason [Wife] never filed an answer or made an appearance, not because of

conscious indifference or intent to not appear.”

During the hearing on her motion, Mother again testified Father told her to

throw away the documents, and they would go through mediation. Emails from

January 2023 between Mother and Father’s attorney were introduced during the

hearing. In the first email, Mother was informed that George Crumley had been

retained to represent Father. Crumley understood Father had provided Mother with

a copy of the divorce petition filed on October 26, 2022, but asked whether she

would be willing to sign a waiver of service. When Mother expressed confusion

about the process, Crumley responded with an email explaining Father “filed the

case for divorce already” and again asking whether Mother would execute the waiver

of service for the October 2022 petition. In another email, Crumley asserted:

I am not sure what you and [Father] previously talked about, but the
petition is indeed valid. The filing of that petition DID open the case
and it is now pending in court. . . . [I]t is most certainly legally valid,
and it was effective from the moment it was filed. . . . For now, the
petition is the only one on file. The case is already pending, and he
does wish to move forward.
Mother admitted she never signed the waiver of service or answered but

maintained it was because of her conversations with Father. These conversations,

however, occurred before Mother exchanged emails with Crumley in which he

clarified a petition was on file and some action was required on her part.

With conflicting evidence before it, the trial court was free to disbelieve

Mother and resolve the evidentiary conflicts against her. In Interest of J.O.A., 2016
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WL 1660288, at *5. Thus, the trial court acted within its discretion by determining

Mother acted with conscious indifference when she failed to answer the divorce

petition after Father’s attorney told her the petition was on file and Father was

moving forward with the divorce. See Levine, 248 S.W.3d at 169 (pattern of

ignoring warnings from opposing party shows conscious indifference); see also In

Interest of A.T., No. 05-16-00539-CV, 2017 WL 2351084, at *10 (Tex. App.—

Dallas May 31, 2017, no pet.) (mem. op.) (knowledge and acts of defaulting party

may be considered when determining if failure to answer was intentional). Because

Wife did not meet her burden of proving the first Craddock prong, we overrule her

third issue to the extent she argues she is entitled to a new trial addressing the entirety

of the divorce decree.

We next consider Mother’s separate argument that the trial court abused its

discretion by awarding Husband more relief than requested. Because Texas is a “fair

notice” state, which means that all parties are entitled to fair notice of a claim, a trial

court may not grant relief to a person who has not requested such relief in a live

pleading. In re Russell, 321 S.W.3d 846, 855 (Tex. App.—Fort Worth 2010, orig.

proceeding). Pleadings must provide fair notice of the claims asserted and allow the

opposing party to ascertain the nature and basic issues of the controversy. TEX. R.

CIV. P. 45; Interest of S.M.G., No. 05-22-00937-CV, 2023 WL 3963992, at *2 (Tex.

App.—Dallas June 13, 2023, no pet.) (mem. op.); In re N.L.V., No. 04-09-00640-

CV, 2011 WL 1734228, at *4 (Tex. App.—San Antonio May 4, 2011, no pet.) (mem.

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op.). In determining whether a judgment conforms to the pleadings, we view the

pleadings as a whole. Interest of S.M.G., 2023 WL 3963992, at *2.

Father requested in his pro se petition for divorce that Mother and Father both

be named joint managing conservators of the children, and “Neither parent should

have the exclusive right to designate the primary residence of the child(ren) but both

parents should be ordered not to move the child(ren) out of the following geographic

area: this school district: Plano ISD.” During the default prove-up hearing, Father

asked the court to give him the exclusive right to designate the children’s primary

residence and limit the geographic area to Collin County. He indicated Mother had

expressed “in the recent past some desire to possibly move away;” therefore, he

thought it was in the children’s best interest to keep the residence in Collin County

so the children could finish high school.

The trial court’s order does not conform to Father’s requested relief and is

erroneous. See, e.g., id. (ordering child’s last name to be hyphenated was erroneous

when mother’s petition did not request such relief). Further, Father’s statement

regarding Mother’s alleged desire to “possibly move away,” provided nothing more

than speculation and was not evidence from which the trial court could determine

Father should be given the exclusive right to designate the primary residence of the

children within Collin County, Texas. We sustain Mother’s third issue to the extent

the trial court denied her a new trial on the designation of Father as the joint

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managing conservator with the right to designate the primary residence within Collin

County, Texas.2

Property Division

In Mother’s first issue, she argues the evidence is legally and factually

insufficient to support the division of marital property.

In a divorce decree, the trial court “shall order a division of the estate of the

parties 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 ANN.

§ 7.001. When reviewing the trial court’s property division, we look to whether the

trial court acted arbitrarily or unreasonably and without reference to any guiding

rules and principles. Evans v. Evans, 14 S.W.3d 343, 346 (Tex. App.—Houston

[14th Dist.] 2000, no pet.).

Because the traditional sufficiency standards of review overlap with the abuse

of discretion standard in family law cases, legal sufficiency is not an independent

ground of error but is a relevant factor in our assessment of whether the trial court

abused its discretion. Gonzalez v. Gonzalez, 331 S.W.3d 864, 866 (Tex. App.—

Dallas 2011, no pet.). In reviewing the evidence for legal sufficiency, we view the

evidence in the light most favorable to the fact finding, credit favorable evidence if

a reasonable trier of fact could do so, and disregard contrary evidence unless a

2
During the motion for new trial hearing, Father conceded, “the Court [c]ould limit any grant of a new
trial to the issues of the geographic restriction and primary.”
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reasonable trier of fact could not. Id.; see also City of Keller v. Wilson, 168 S.W.3d

802, 827 (Tex. 2005).

Our analysis focuses on a two-pronged inquiry: (1) Did the trial court have

sufficient information upon which to exercise its discretion?; and (2) Did the trial

court abuse its discretion by causing the property division to be manifestly unjust or

unfair? Evans, 14 S.W.3d at 346. A trial court abuses its discretion when it rules

without supporting evidence. Id.

Although no evidence is generally required to support a default judgment, the

general rule is limited in the divorce context by section 6.701 of the family code,

which provides that “[i]n 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;

Agraz v. Carnley, 143 S.W.3d 547, 552 (Tex. App.—Dallas 2004, no pet.). Rather,

a petitioner is required to prove up the material allegations in the petition in order to

obtain a default divorce. Agraz, 143 S.W.3d at 552; see also Garcia, 2020 WL

214758, at *1. Accordingly, a trial court abuses its discretion by awarding relief not

supported by the pleadings or by rendering a decision without sufficient supporting

evidence. Garcia, 2020 WL 214758, at *2; cf. Schindler v. Schindler, No. 13-16-

00483-CV, 2018 WL 3151857, at *6 (Tex. App.—Corpus Christi-Edinburg 2018,

no pet.) (mem. op.) (concluding wife’s testimony, along with an exhibit based on her

personal knowledge showing a proposed property division based on the values of

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the community property and debts owed, was sufficient to support court’s division

of martial property).

During the prove-up hearing, Father requested the court to award Mother the

marital residence and all the equity. When asked, “Approximately how much equity

ownership do you believe that y’all have in the house?” Husband answered, “Oh, I

would guess $400,000.” He provided no further information regarding the residence

and did not introduce any other evidence. Without documentation reflecting the

home’s appraisal or value, his testimony is nothing more than conclusory speculation

regarding the value of the marital residence. Further, although he testified their

finances had been “mostly separate” since their separation, he provided no

documentation regarding assets, liabilities, or debts of the marital estate supporting

his testimony.

Because the record does not contain any evidence regarding the value of the

marital residence or the values of any other assets, liabilities, and debts of the marital

estate, the trial court did not have legally sufficient evidence to award and order a

“just and right” division of the martial property in the default divorce judgment. See

TEX. FAM. CODE ANN. §7.001 (“court shall order a division of the estate of the parties

in a manner the court deems just and right”); see also O’Neal v. O’Neal, 69 S.W.3d

347, 350 (Tex. App.—Eastland 2002, no pet.) (legally insufficient evidence to

support property division when record contained no evidence of the value of any

property divided by the court); Agraz, 143 S.W.3d at 552 (explaining petitioner is

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required to prove up the material allegations in the petition to obtain a default

divorce). Without sufficient information, the trial court abused its discretion in the

division of the marital estate. See Evans, 14 S.W.3d at 346 (noting first step in abuse

of discretion analysis is whether trial court had sufficient information upon which to

exercise its discretion). We sustain Mother’s first issue.

Conservatorship, Possession and Access, and Child Support

In her second issue, Mother broadly states the evidence is legally and factually

insufficient to support the trial court’s decisions regarding the best interests of the

children for conservatorship, possession and access, and child support. However,

she only challenges the trial court’s determination that neither parent is required to

pay child support. We limit our review accordingly.

In Father’s pro se petition for divorce, he requested “the court to make

appropriate orders for the financial support of the child(ren), including regular child

support, medical support, dental support and, if supported by the evidence,

retroactive child support.” In the final decree, the trial court ordered that “no party

will owe child support to the other party.” The trial court’s judgment does not

conform to Father’s requested relief and thus does not provide fair notice of the

claims asserted. TEX. R. CIV. P. 45; Interest of S.M.G., No. 05-22-00937-CV, 2023

WL 3963992, at *2 (Tex. App.—Dallas June 13, 2023, no pet.) (mem. op.); In re

N.L.V., No. 04-09-00640-CV, 2011 WL 1734228, at *4 (Tex. App.—San Antonio

May 4, 2011, no pet.) (mem. op.).

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Even if we construe his pleading broadly, meaning Father’s request for the

trial court to determine “appropriate orders for the financial support of the children”

allowed the court to order that neither parent pay child support, we conclude the trial

court abused its discretion because the evidence is legally insufficient to support the

order.

We review a trial court’s ruling on child support for a clear abuse of discretion.

In Interest of S.D.S.H., No. 05-15-00564-CV, 2016 WL 3398074, at *2 (Tex. App.—

Dallas June 20, 2016, no pet.) (mem. op.). In determining whether the trial court

abused its discretion because the evidence is insufficient, we consider whether the

trial court (1) had sufficient evidence upon which to exercise its discretion and (2)

erred in its exercise of that discretion. Id.

During the prove-up hearing, the following exchange occurred:

Q. With respect to child support, you are asking the Court to enter
an order today that neither party is required to pay the other side child
support; is that correct?

A. Yes.
...

Q. Do you believe that all of the provisions regarding
conservatorships, support, custody, or possession of the children are in
their best interest?

A. Yes, I do.

There is a complete absence of any evidence regarding the financial position of either

parent, and the record contains no further discussion regarding whether the order

was in the children’s best interest. While we are mindful the trial court is in the best
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position to “observe the witnesses’ demeanors and personalities and thus discern

forces, powers, and influences not apparent by merely reading the record,” the trial

court needed more than the conclusory statement of one parent to support its

conclusion that neither parent paying child support was in the best interests of the

children. See Niska v. Niskar, 136 S.W.3d 749, 753 (Tex. App.—Dallas 2004, no

pet.). Accordingly, the trial court abused its discretion by ordering neither parent to

pay child support. We sustain Mother’s second issue.

Conclusion

The trial court abused its discretion to the extent it (1) divided the martial

property, (2) ordered neither party to pay child support, and (3) denied Mother a new

trial on the designation of Father as the joint managing conservator with the right to

designate the primary residence of the children within Collin County, Texas. We

reverse the judgment as to these issues and remand to the trial court for further

proceedings. We affirm the judgment in all other respects.

/Erin A. Nowell//
230505f.p05 ERIN A. NOWELL
JUSTICE

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Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT

IN THE INTEREST OF M.B.G. On Appeal from the 468th Judicial
AND A.T.G., CHILDREN District Court, Collin County, Texas
Trial Court Cause No. 468-56348-
No. 05-23-00505-CV 2022.
Opinion delivered by Justice Nowell.
Justices Partida-Kipness and Smith
participating.

In accordance with this Court’s opinion of this date, the judgment of the trial
court is AFFIRMED in part and REVERSED in part. We REVERSE that portion
of the trial court’s judgment dividing the marital property, ordering neither party to
pay child support, and designating Travis Jay Gardner as the joint managing
conservator with the right to designate the primary residence in Collin County,
Texas. In all other respects, the trial court’s judgment is AFFIRMED. We
REMAND this cause to the trial court for further proceedings consistent with this
opinion.

It is ORDERED that Margaret Barah Gardner recover her costs of this appeal
from Travis Jay Gardner.

Judgment entered this 2nd day of May, 2024.

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