Brandon Kyle Sherrill v. Toni Ann Sherrill ( 2014 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-14-00077-CV
BRANDON KYLE SHERRILL APPELLANT
V.
TONI ANN SHERRILL APPELLEE
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FROM THE 233RD DISTRICT COURT OF TARRANT COUNTY
TRIAL COURT NO. 233-542854-13
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MEMORANDUM OPINION1
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Pro se Appellant Brandon Kyle Sherrill appeals from a final decree of
divorce. We will affirm.
In August 2013, Appellee Toni Ann Sherrill filed a petition to divorce
Brandon. Although we can gather from the record that he was served, Brandon
1
See Tex. R. App. P. 47.4.
did not file an answer, nor did he appear at the final trial in December 2013.2 The
trial court signed a final decree of divorce that divided the community estate,
confirmed Toni’s and Brandon’s separate property, and ordered them divorced.3
Brandon timely requested that the trial court issue findings of fact and
conclusions of law, but the court never did so. Thereafter, Brandon perfected
this appeal. Before the cause was submitted, the court reporter assigned to the
trial court notified this court that she “did not make a Reporter’s Record in this
case [on the day of the final trial].” Toni did not file a brief.
In three issues, Brandon argues that because there is no reporter’s record,
the evidence is legally and factually insufficient to support the trial court’s
property awards and judgment. Brandon is correct that he may raise evidentiary
sufficiency issues even though he did not file an answer or make an appearance.
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 (West 2006).
Therefore, if the respondent fails to answer or appear, the petitioner must present
evidence to support the material allegations in the petition. Gonzalez v.
Gonzalez, 331 S.W.3d 864, 866 (Tex. App.—Dallas 2011, no pet.).
Consequently, a default judgment of divorce is subject to an evidentiary attack on
appeal. Id.
2
In his statement of facts, Brandon asserts that he did not receive notice of
the final trial, but he does not assign any error, nor include any argument,
regarding the contention.
3
There were no children of the marriage.
2
However, the problem with Brandon’s sufficiency issues is that there was
no reporter’s record made during the final divorce trial.4 In order to overcome the
presumption that the trial court correctly exercised its discretion in dividing
community property, the appellant bears the burden to show from the evidence in
the record that the division was so disproportionate as to constitute an abuse of
discretion. Finch v. Finch, 825 S.W.2d 218, 221 (Tex. App.—Houston [1st Dist.]
1992, no writ). Likewise, to show error in characterizing property as separate,
the appellant must demonstrate from the evidence at trial that the court’s finding
is not supported by clear and convincing evidence and that the error caused an
abuse of discretion. Viera v. Viera, 331 S.W.3d 195, 207 (Tex. App.—El Paso
2011, no pet.). Contrary to Brandon’s argument, in the absence of a reporter’s
record, we do not conclude that there is no evidence to support the judgment.
Instead, we must presume that the evidence is sufficient to support the
judgment.5 See Simon v. York Crane & Rigging Co., 739 S.W.2d 793, 795 (Tex.
1987); Emesowum v. Morgan, No. 14-13-00397-CV, 2014 WL 3587385, at *2
(Tex. App.—Houston [14th Dist.] July 22, 2014, pet. filed) (mem. op.) (“Because
4
The divorce decree states that a hearing took place on December 4,
2013, and that the “Court heard evidence.” Brandon does not contend that no
evidentiary hearing took place.
5
The caselaw that Brandon cites is inapposite because the appellate courts
in those cases had a reporter’s record. See Wolk v. Wolk, No. 03-06-00595-CV,
2007 WL 2682173, at *2‒3 (Tex. App.—Austin Sept. 12, 2007, no pet.) (mem.
op.); Odom v. Odom, No. 12-06-00218-CV, 2007 WL 677800, at *2 (Tex. App.—
Tyler Mar. 7, 2007, no pet.) (mem. op.); Suarez v. Suarez, No. 13-04-00108-CV,
2006 WL 1194960, at *2‒3 (Tex. App.—Corpus Christi May 4, 2006, no pet.)
(mem. op.).
3
our appellate record contains no record of the trial proceedings, we presume that
the trial evidence was legally and factually sufficient to support the . . .
judgment . . . .”); Crown Asset Mgmt., LLC v. Burnett, No. 05-07-01186-CV, 2008
WL 3197098, at *2 (Tex. App.—Dallas Aug. 8, 2008, no pet.) (mem. op.) (“We
note at the outset that our record contains no reporter’s record. This can be
significant because without a reporter’s record we cannot reverse a judgment
based on arguments that depend on the evidence admitted at a hearing.”); Taylor
v. Am. Emery Wheel Works, 480 S.W.2d 26, 30 (Tex. App.—Corpus Christi
1972, no writ) (“There being no statement of facts . . . we do not know what
constituted the evidence, but inasmuch as the court’s judgment recites that
evidence was heard, we must presume that the evidence, whatever it might have
been, was sufficient to support the judgment of the trial court.”). There being no
reporter’s record to review for evidentiary sufficiency, we presume that the trial
court did not abuse its discretion in dividing the community estate and awarding
separate property.
Citing family code section 6.711, Brandon appears to argue that he
suffered harm because the trial court did not make findings of fact and
conclusions of law. See Tex. Fam. Code Ann. § 6.711 (West 2006) (“In a suit for
dissolution of a marriage in which the court has rendered a judgment dividing the
estate of the parties, on request by a party, the court shall state in writing its
findings of fact and conclusions of law.”). But Brandon cannot show harm
because even if the trial court had entered findings and conclusions, there is no
4
reporter’s record, and we would presume that the findings are supported by the
trial court’s judgment. See In re Tyler, 408 S.W.3d 491, 495 (Tex. App.—El Paso
2013, no pet.). Brandon raises no questions of law.
Accordingly, we overrule Brandon’s issues and affirm the trial court’s
judgment.
/s/ Bill Meier
BILL MEIER
JUSTICE
PANEL: GARDNER, WALKER, and MEIER, JJ.
DELIVERED: October 30, 2014
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