Texas Appeals Court Denies New Trial and Affirms Disproportionate Division in Default Divorce

iStock-545456068-300x184A court may proceed with a Texas divorce case even if a party does not appear for the trial. In some cases, a party who fails to respond to divorce papers or appear at trial may be entitled to a new trial, but they must meet certain requirements.  In a recent case, a husband appealed the denial of a new trial and challenged the property division in a default divorce.

According to the appeals court’s opinion, the parties lived in the husband’s home in Texas after their marriage in Nigeria.  The husband bought a home in New Hampshire and moved there in 2017.  The wife petitioned for divorce in 2018.

The trial court issued a temporary restraining order prohibiting the husband from interfering with the wife’s health insurance, but he informed the insurer they were divorced while the divorce was pending. The wife’s coverage was cancelled.  The wife had to pay $7,500 for medical expenses that the insurer had approved before cancellation. The trial court also prohibited the husband from terminating utility services, but the wife alleged he had them disconnected repeatedly.

Husband Did Not Appear at Trial

The husband did not appear at trial, but the wife testified.  The divorce decree awarded each party the vehicle in their possession and the associated debt.  The court also awarded each party 50% interest in the New-Hampshire property and in the financial accounts in the husband’s name.  The court ordered the husband to pay monthly support, reimbursement, and the wife’s medical expenses arising from cancellation of her insurance.

The husband moved for a new trial, and both parties testified at the hearing. The court denied the motion, but modified the decree to remove the spousal support and reimbursement.

Husband Appealed

The husband appealed, arguing the trial court erred in granting the default judgment. He argued he met the required factors for a new trial as set forth in Craddock v. Sunshine Bus Lines, Inc.: the party’s failure to answer was due to mistake or accident and not intentional or the result of conscious indifference; the party’s motion sets up a meritorious defense; and granting the motion will not cause delay or injury to the other party.

The husband argued he did not appear due to mistake or accident because he could not travel due to health issues.  The appeals court presumed the met this factor and primarily focused on the meritorious defense factor.

Setting up a meritorious defense requires the party to allege facts that would constitute a defense to the cause of action and support them through affidavits or other evidence that would constitute prima facie proof of the defense. The husband pointed to the disproportionate award and a lack of evidence supporting it, award of his separate property to the wife, allegedly false testimony, a pending divorce case in Nigeria, and a pending petition to revoke the wife’s permanent residence status “for fraudulent marriage. . .” He did not attach an affidavit.

The appeals court noted that the property division must be just and right, not necessarily equal. The appeals court acknowledged the division was disproportionate.

Evidence Supported Disproportionate Division

The wife requested a disproportionate share for several reasons, including health, disparate earning power, the husband’s fault in the breakup, and her need for future support.  She testified the husband threatened to kill her and lied to her manager to get her fired. She testified she needed surgery, but could not afford it without insurance.  She testified she could not work full-time because of her health.  She testified the husband earned a good salary and had retirement and brokerage accounts. She said she had small checking and savings accounts and only got money from her job.

The appeals court found this testimony supported a disproportionate award.  The trial court could have interpreted it as showing she had significantly less income and assets and would need support in the future.  The husband did not provide contradictory evidence at the hearing. The appeals court found the husband failed to set up an affirmative defense based on the disproportionate award.

The appeals court also found the husband failed to set up a defense that his separate property was awarded to the wife.  The trial court excluded testimony at the hearing that certain accounts were separate and that the New Hampshire property had been purchased with his separate-property funds because it had not been disclosed in discovery. He testified he opened the accounts before the marriage, but did not present any evidence that they had not been commingled with community property.

The husband therefore did not show the court erred in denying his motion for a new trial.

The husband also argued the trial court abused its discretion because it did not have sufficient information to order a disproportionate property division.  The wife had provided detailed testimony regarding the assets.  She also testified about the mortgages and that she wanted the husband to have the debt on his credit cards and the vehicle he was awarded. The appeals court found the trial evidence supported a disproportionate division.

The husband also argued the trial court erred in awarding the wife a judgment for medical expenses that was not supported by the pleadings. The wife’s petition did not request damages for medical expenses. A post-answer default judgment cannot award relief on a cause of action that was not included in the party’s pleadings. The trial court also could not order the medical expenses as a sanction for the husband’s violation of its order not to cancel the wife’s health insurance without first providing him notice and an opportunity to respond.

The appeals court modified the judgment to vacate the medical expenses award and affirmed the judgment as modified.

Avoid a Default Judgment – Call McClure Law Group Today

If a party fails to appear for their divorce trial, they may receive an unfavorable default judgment. If your circumstances may make it difficult to appear for hearings or trial in your divorce case, you should consult with an experienced Texas divorce attorney to discuss your options. Schedule an appointment with McClure Law Group by calling 214.692.8200.

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