Default Does Not Mean Devoid of Evidence: Opinions, April 27, 2017

This morning the Fourteenth Court of Appeals released its memorandum opinion in Lucio v. Lucio, No. 14-15-00951-CV which concerns the minimum amount of evidence necessary for a division of the marital estate in a default divorce (and which is a companion to a similar opinion from the First Court of Appeals in Colmenero v. Colmenero that I previously blogged about).

Virginia and Victor were married in 1982 and Virginia filed her original petition for divorce in July, 2015. Victor did not file a timely answer. At the hearing, the following testimony from Virginia constituted the entirety of the evidence regarding the assets and liabilities of the estate:

Q. Okay. You have set forth in the decree a proposed division of your property and debts?
A. Yes.
Q. And you believe that the division is fair and equitable?
A. Fair, yes.
Q. And just and right?
A. Yes.
Q. And you’re asking the Court to approve that division as part of your divorce, correct?
A. Correct

Virginia had filed but not admitted to evidence a proposed decree assigning community property and debts between the parties. But the proposed decree did not include any values for the community property or the community estate in its entirety, nor did it list any amounts for outstanding debts. “In short, the trial court received no evidence regarding the value of the community assets or liabilities.”

The trial court entered a final decree which divided the estate but did not make any findings as to the values of any assets or liabilities. Victor subsequently filed an answer, a motion for new trial, and then a notice of appeal.

On appeal, Victor argued the evidence was legally insufficient to support the division. The Court of Appeals agreed, noting that even in a default, the petitioner must still present evidence to support the material allegations in the petition and that the only evidence in the record in support of the division was Virginia’s testimony that the division proposed was fair, just, and right. The Court of Appeals reversed and remanded for further proceedings.


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