Beth M. Johnson
Default Orders Must Be Supported by Evidence
Updated: Jan 31, 2022
In a suit for divorce, the petition may not be taken as confessed if the respondent does not file an answer. Tex. Fam. Code § 6.701. So, in reality, there is no such thing as a “default” divorce. The petitioner must present evidence to support all the material allegations in the petition. Vazquez v. Vazquez, 292 S.W.3d 80, 83–84. (Tex. App.—Houston [14th Dist.] 2007, no pet.).
Testifying about some, but not all, of the parties’ property is insufficient to support a default judgment. In re Marriage of Durham, No. 10-19-00199-CV, 2021 WL 837348, at *3 (Tex. App.—Waco 2021, no pet. h.) (mem. op.). In Durham, the wife testified as to some of the parties’ property, but did not offer any evidence regarding character or value. Id. Without that evidence, there was insufficient evidence to support a finding that the division was just and right. Id.
Similarly, even without other witnesses to controvert your client’s claims, a SAPCR cannot be supported by conclusory testimony that an order would be in a child’s best interest. See Avarelo v. Fink, No. 01-19-00822-CV, 2020 WL 5778813, at *3 (Tex. App.—Houston [1st Dist.] 2020, no pet.) (mem. op.). In Arevalo, the mother testified that appointing her as sole managing conservator would be in the child’s best interest but offered no substantive evidence to support that conclusory statement. Id. If the mother had followed the family code guidelines and presumptions and sought joint managing conservatorship with a standard possession order, the presumptions would likely have been enough to support the judgment without additional evidence.
Nearly every month, there is another appellate opinion reversing a default family-law order because no—or nearly no—evidence was presented at trial. Defaults are not the same as agreed. If the other party is a no show, and if you do not want to risk having the order reversed on appeal, you have to prove up every single claim. This does not have to be done exclusively through testimony—though you CANNOT waive the making of a record. The record can only be waived by agreement of the parties, and if one party is not there, there can be no agreement. See In re Marriage of Aguilar, No. 07-20-00040-CV, 2021 WL 68683, at *2 (Tex. App.—Amarillo 2021, no pet.) (mem. op.).
Be prepared to offer the same evidence you would have offered if the other side had appeared. Bring a sworn inventory and appraisement with values and a proposed property division that shows the division is just and right. If you are awarding your client a disproportionate division, bring the evidence to support why that is proper. Similarly, in a SAPCR, bring the relevant evidence, such as school records or calendars showing the other party never exercised possession. Have your client testify about the fact that he is the one who always took the child to the doctor and ensured the child did her homework.
If you have the other parties’ signature on a decree, you can do a simple prove-up with generic conclusory questions. But without that signature—if you are seeking a default—DO NOT FORGET TO PUT ON YOUR EVIDENCE!