Written by attorney Thomas James Daley

Default Prove Up is No Lay Up

TUCKER v. TUCKER No. 05-09-01203-CV Court of Appeals of Texas, Fifth Distrct, Dallas. November 22, 2010

The Dallas court of appeals recently reversed and remanded a property division awarded to a petitioner when the respondent in the divorce action failed to file an answer or appear at the final prove up hearing.

The trial judge was Hon. Chris Oldner. Petitioner was represented by Chris Parks (Legal Aid of NorthWest Texas). Respondent was pro se, and evidently in jail during the proceedings.[N.B. Chris Parks contacted my office on March 3, 2011 to say that he did not represent the Petitioner in this matter but that the Petitioner had been represented by a LANWT attorney who is no longer employed by LANWT.]

The trial court awarded Ms. Tucker as her “sole and separate" property “[a]ll household furniture, furnishings, fixtures, goods, art objects, collectibles, appliances, and equipment in the possession of wife or subject to her sole control, including kitchen equipment." Mr. Tucker, who appealed the trial court's decision, was similarly awarded “[a]ll household furniture, furnishings, fixtures, goods, art objects, collectibles, appliances, and equipment" in his possession and subject to his sole control. While the judgment states the property was awarded as each parties' separate property, the judgment also indicates it constitutes the division of the marital estate. In either event, the appeals court ruled that the trial court's judgment was not supported by the evidence.

It seems likely that the language of the final order improperly confirmed separate property rather than divided the marital estate into two, post-divorce separate property estates. However, the appeals court was willing to overlook this error in language and focused instead on the substance of the trial court's award.

The appeals court assumed the property was awarded as a division of the marital estate, but found that even so, the award was erroneous. According to the appeals court, "[t]here must be some reasonable basis in the record to support the trial court's division of the community estate. In re E.M.V., 312 S.W.3d at 291; Sandone v. Miller-Sandone, 116 S.W.3d 204, 207 (Tex. App.-El Paso 2003, no pet.). Here, there was no evidence presented at the prove-up hearing concerning the size or value of the community assets."

"No evidence" is a strong characterization. It means the attorney doing the prove up didn't even elicit verbal testimony from the petitioner as to the size or value of the community estate.

The appeals court continues: "Moreover, although the trial court ordered appellant to pay certain specified debts totaling $90,954.55, appellee did not present any evidence of the debts. We conclude the trial court abused its discretion in dividing the community estate in the absence of any evidence in the record. E.M.V., 312 S.W.3d at 291; see also O'Neal v. O'Neal, 69 S.W.3d 347, 350 (Tex. App.-Eastland 2002, no pet.)."


Just because the respondent is pro so, in jail, and fails to file an answer, the appeals court will look carefully at the record to see whether the trial court's judgment and the final order signed by the court comport with the legal requirements of a "just and right" division of the community estate.

  1. If you're going to prove up a default order, offer testimony and other evidence as to the size and value of the community state.
  2. If you're going to divide debts, offer evidence of the existence and size and other terms of the debt.

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