Jenna Tabakman v. Gary Tabakman

Affirmed and Memorandum Opinion filed July 16, 2024.

In The

Fourteenth Court of Appeals

NO. 14-23-00121-CV

JENNA TABAKMAN, Appellant

V.
GARY TABAKMAN, Appellee

On Appeal from the 246th District Court
Harris County, Texas
Trial Court Cause No. 2022-20660

MEMORANDUM OPINION

Jenna Tabakman appeals from a no-answer default final decree of divorce
that dissolved her marriage to Gary Tabakman. In three issues, Jenna contends that
(1) the trial court never acquired personal jurisdiction over her because there was
no valid service of process; (2) she established her entitlement to a new trial
pursuant to the factors listed in Craddock v. Sunshine Bus Lines, Inc., 133 S.W.2d
124 (Tex. 1939); and (3) the evidence was legally and factually insufficient to
support the division of the marital estate in the default decree. We affirm.
Background

The parties were married in 2009 and had one child together, a daughter
born in 2015. Gary filed his Original Petition for divorce on April 5, 2022. Shortly
thereafter, Jenna moved out of the marital residence in Houston and went to live
with her parents, who also reside in Houston.

Gary filed a First Amended Petition on July 13, 2022, and a Motion for
Alternative Service on August 3, 2022. In the order granting the motion, the trial
court stated that service on Jenna could be effected by a process server “leaving a
copy of the citation with pleadings and orders attached to the front door at 12625
Memorial Drive, Unit 108, Houston, Texas 77024,” which is the address of Jenna’s
parent’s residence. The court further ordered that “[p]roof of service shall be made
by the person executing the return, stating when the citation was served and where
it was taped at on the front door of the residence.” An Affidavit of Service signed
by process server Rhonda Stephens stated that on August 25, 2022, at 7:46 p.m.,
she posted copies of the “Citation, First Amended Petition for Divorce, and Order
on Motion for Alternative Service . . . to the front door of 12625 Memorial Drive,
Unit 108, Houston, Texas 77024” as per the order. Jenna never filed an answer and
never made an appearance in the lawsuit until after the associate judge orally
rendered a default judgment.

The associate judge held a hearing and orally rendered a default judgment on
October 10, 2022. Gary testified at the hearing, and his Sworn Inventory and
Appraisement and Proposed Property Division was admitted into evidence. In the
inventory, Gary assigned a value of $175,000 to a Fidelity brokerage account in
Jenna’s name and proposed she receive the entirety of the account. During the
hearing, Gary acknowledged that he did not have access to the Fidelity account and
did not know the account number. He explained that the appraised value was an

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approximation based on Jenna’s funding of the retirement account through the
years and the amount he had seen in the account a few years before. He stated that
he had “good reason to believe” the estimated value.

The inventory listed the total value of the couple’s marital assets at
$540,307.41 and proposed Jenna receive $270,217.60 and Gary receive
$270,089.81, including the full amount of the estimated equity in the marital
residence ($155,437.78). The inventory further listed the couple’s total liabilities at
$194,678.80 (excepting the debt owed on the residence) and assigned $40,842 of
that to Jenna and $153,836.80 to Gary. Thus, according to the inventory, Jenna
would receive a net total of $229,375.60, or 66.36 percent, and Gary would receive
a net total of $116,253.01, or 33.64 percent. At the conclusion of the hearing, the
trial court granted the divorce, ordered the marital residence sold and the proceeds
divided evenly (instead of all of the equity going to Gary as he had proposed),
granted “other requested relief . . . per the inventory,” and granted the requested
relief for the couple’s minor child, which was joint managing conservatorship.

On October 26, 2022, Jenna appeared and filed an Original Answer, and five
days later, she filed a Motion to Set Aside the Default Judgment and In the
Alternative a Motion for New Trial. Notwithstanding Jenna’s appearance, on
November 4, 2022, the trial court signed a Default Final Decree of Divorce.1 Jenna
thereafter amended her motion twice, and the trial court held a hearing on the
second amended motion. Several witnesses testified at the hearing, including Jenna
and Gary, Jenna’s father, and Stephens, the process server. Numerous exhibits
were also admitted into evidence, including emails, text messages, affidavits,
photographs, and a letter. Jenna argued among other things at the hearing that she

1
Jenna does not argue on appeal that the trial court abused its discretion by signing the
Default Final Decree of Divorce after she appeared.

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never received service of process.

Discussion

The critical question in this appeal from a default final decree of divorce is:
why did Jenna, the respondent, not file an answer and appear? See Sutherland v.
Spencer, 376 S.W.3d 752, 755 (Tex. 2012). If Jenna did not appear because she
never received the suit papers, then we should set aside the default judgment. See
id. If she received the suit papers but has some other reason for not appearing, then
the default judgment must be set aside if she proved the three elements of the
Craddock test. See id. We will begin our analysis by examining whether Jenna
received valid service of process before turning to her arguments regarding the
Craddock elements. Lastly, we will consider Jenna’s contention that the final
decree was not supported by legally or factually sufficient evidence.

I. Service of Process

A. Standards of Review

As stated above, in her first issue, Jenna contends that the trial court never
acquired personal jurisdiction over her because there was no valid service of
process. Unless the record affirmatively shows an appearance by the respondent,
proper service of citation on the respondent, or a written waiver of service at the
time a default judgment is rendered, the trial court does not have personal
jurisdiction to render a default judgment against the respondent. See Creaven v.
Creaven, 551 S.W.3d 865, 869–70 (Tex. App.—Houston [14th Dist.] 2018, no
pet.). Whether a court has personal jurisdiction over a respondent is a question of
law that we review de novo. See Retamco Operating, Inc. v. Republic Drilling Co.,
278 S.W.3d 333, 337 (Tex. 2009); BMC Software Belg., N.V. v. Marchand, 83
S.W.3d 789, 794 (Tex. 2002). Frequently, when deciding this question of law, a

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trial court will be required to resolve questions of fact. LG Chem Am., Inc. v.
Morgan, 670 S.W.3d 341, 346 (Tex. 2023); BMC Software, 83 S.W.3d at 794. On
appeal, the trial court’s findings, express or implied, may be challenged for legal
and factual sufficiency. See BMC Software, 83 S.W.3d at 794–95; see also
Gregory v. Graves, No. 06-23-00005-CV, 2023 WL 8446339, at *5 (Tex. App.—
Texarkana Dec. 6, 2023, no pet.) (mem. op.) (applying BMC Software specifically
in the context of a service of process dispute).

In reviewing for legal sufficiency, we credit favorable evidence if a
reasonable factfinder could and disregard contrary evidence unless a reasonable
factfinder could not. City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005).
The question is whether the evidence submitted would enable reasonable and
fair-minded people to find the facts at issue. See id. The factfinder is the sole judge
of the credibility of the witnesses and the weight of their testimony. See id. at 819.
In reviewing for factual sufficiency, we examine the entire record, considering
both the evidence in favor of, and contrary to, the challenged finding. Cain v. Bain,
709 S.W.2d 175, 176 (Tex. 1986). After considering and weighing all the
evidence, we set aside the fact finding only if it is so contrary to the overwhelming
weight of the evidence as to be clearly wrong and unjust. Pool v. Ford Motor Co.,
715 S.W.2d 629, 635 (Tex. 1986). Again, the trier of fact is the sole judge of the
credibility of the witnesses and the weight to be given to their testimony. GTE
Mobilnet of S. Tex. v. Pascouet, 61 S.W.3d 599, 615–16 (Tex. App.—Houston
[14th Dist.] 2001, pet. denied). We may not substitute our own judgment for that of
the trier of fact, even if we would reach a different answer on the evidence.
Maritime Overseas Corp. v. Ellis, 971 S.W.2d 402, 407 (Tex. 1998).

For a no-answer default judgment to withstand direct attack, the record must
establish strict compliance with the rules of civil procedure governing issuance,

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service, and return of citation. Primate Constr., Inc. v. Silver, 884 S.W.2d 151, 152
(Tex. 1994). If the record does not affirmatively show strict compliance, the
attempted service of process is invalid, the trial court has no personal jurisdiction
over a defendant, and the judgment is void. See Hubicki v. Festina, 226 S.W.3d
405, 408 (Tex. 2007); Creaven, 551 S.W.3d at 870.

Texas Rule of Civil Procedure 106 authorizes a court to order a substitute
method of service. Tex. R. Civ. P. 106(b)(2). When a plaintiff uses substituted
service, Texas law places a burden on the plaintiff to prove that he or she served
the defendant in the manner required by the applicable rule. Creaven, 551 S.W.3d
at 870. “Where citation is executed by an alternative method as authorized by Rule
106, proof of service shall be made in the manner ordered by the court.” Tex. R.
Civ. P. 107(f). When a trial court orders substituted service under Rule 106, the
only authority for the substituted service is the order itself. Creaven, 551 S.W.3d at
870.

B. Analysis

Jenna raises three arguments as to why there was no valid service of process
in this case: (1) the evidence refutes that the case documents were served at all; (2)
the trial court’s order required multiple pleadings and orders be served along with
the citation but the process server reported only serving the amended petition and
the order authorizing substitute service; and (3) the trial court’s order required that
the process server’s return state where on the door the documents were taped but
the return failed to do so. For the reasons discussed below, we find no merit in any
of these arguments.

1. Evidence Regarding Service

As stated, Jenna first argues that the evidence she submitted refutes that the

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case documents were actually served. The order stated that service could be
effected by a process server attaching the documents to the front door at 12625
Memorial Drive, Unit 108, Houston, Texas 77024. Stephens, the process server,
stated in her Affidavit of Service that on August 25, 2022, at 7:46 p.m., she posted
the documents “to the front door of 12625 Memorial Drive, Unit 108, Houston,
Texas 77024.”

Stephens further testified at the hearing on the motion for new trial that on
August 25, 2022, she approached the guard shack at the entrance to the townhome
neighborhood where Jenna’s parents live. She told the guard that she had a
delivery for the resident in Unit 108, the guard let her through, and she then posted
the documents on the front door of Unit 108. Stephens explained that she took
photographs of the front of the unit and of the door where the documents were
attached. The photos were admitted into evidence. One of the photos shows an area
of the unit that included a garage and a large number, “108,” and Jenna confirmed
in her testimony that this image showed her parent’s residence where she was
staying at the time. The photographs of the front door are clear enough to tell that
there are documents affixed but not so clear as to tell what the documents are.
Stephens further explained that she taped the documents with blue painter’s tape at
the top of the left side of the door glass so that it would be visible from the inside.
Stephens said that she did not see any construction work at the property or any
construction vehicles or workers when she posted the documents. She confirmed
that she was absolutely certain and had no doubt that she posted the documents to
the front door of 12625 Memorial Drive, Unit 108, Houston, Texas on August 25,
2022.

Jenna, however, cites to several pieces of evidence that she contends refutes
Stephens’ testimony and evidence. She first points to her own testimony in which

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she denied being approached by a process server or being made aware someone
was trying to serve her. She also said that she does not recall anyone knocking on
the door of her parent’s home on August 25.

Jenna additionally cites to the affidavit of a construction project manager
who had a crew performing remediation work at Jenna’s parents’ house around
August 25. The work was apparently necessary because the dishwasher had
overflowed. The project manager asserted that at no time did he see anyone post
documents at the door of the residence and none of his workers reported seeing any
documents. He did not, however, state whether his crew was working at 7:46 p.m.
when the process server said that she posted the documents.

Jenna also presented an affidavit from a volunteer with the neighborhood
homeowner’s association, who explained that the security guards were trained to
ask every visitor where they were going and then to text or call the resident to let
them know. He said that it would be very unusual for a visitor to come when a
guard was on duty and for the guard not to notify the resident. Jenna also provided
security guard log entries for August 25, which do not list any process servers or
other visitors to Unit 108. Indeed, the log does not show any construction crew
arrivals for Unit 108, even though the project manager stated that they had to tell
the security guard where they were going when they entered the community. Jenna
did not present testimony from any guard who may have been on duty on August
25.

Jenna’s father also testified, explaining that he was not aware of any
attempts to serve Jenna, he did not see anything posted at his front door on August
25, and the security guards are supposed to contact him by telephone call or text
whenever a visitor comes to his residence. He further said that he did not receive
any texts or calls about a process server.

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The evidence was legally and factually sufficient to support the trial court’s
implied finding that the process server served the case documents on Jenna by
posting them on the door of her parent’s residence. As stated, the server gave
explicit testimony regarding how she served the documents, stated she had no
doubt she did so at the correct address, and provided photographic evidence in
support. Although Jenna certainly offered evidence that could be interpreted as
suggesting service was not accomplished in the manner ordered, the trial court as
factfinder was free to accept the process server’s direct testimony. City of Keller,
168 S.W.3d at 819 (legal sufficiency); GTE Mobilnet, 61 S.W.3d at 615–16
(factual sufficiency).2

2. “Pleadings and Orders”

Next, Jenna argues that the manner of service failed to strictly comply with
the order for substitute service because while the order stated that the citation was
to be served “with pleadings and orders,” the process server only attached one
pleading (the amended petition) and one order (the order for substitute service) to
the citation that was served. It is important to note at the outset what Jenna does
not argue. Jenna does not argue that the order for substitute service itself was
impermissibly vague or otherwise improper, and she does not argue that the return
did not accurately reflect what was actually served. Instead, she argues only that
because the order included the plural words “pleadings and orders,” the process
server was required to serve both the original and the amended petition and both

2
The only case that Jenna references in this portion of her brief is Sozanski v. Plesh, but
that case is readily distinguishable. 394 S.W.3d 601 (Tex. App.—Houston [1st. Dist.] 2012, no
pet.). In Sozanski, evidence demonstrated that the respondent did not reside at the address where
substitute service was attempted, but instead, a third party resided there and did not know how to
reach the respondent, so she returned the documents to the court. Id. at 603, 605. In the present
case, it is undisputed that Jenna was residing at the address where substitute service was
allegedly effected and the process server gave direct testimony supported by photographic
evidence of service at that address.

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the first order for substitute service (relating to service of the original petition) and
the second order for substitute service. Beyond a general citation to boilerplate
language in Creaven regarding the requirement of “strict compliance,” see 551
S.W.3d at 870, Jenna does not cite any relevant authority in support of this
argument.

Although we are certainly cognizant of the stringent requirements of service
of process in default judgment cases, we disagree that the order required service of
anything beyond the citation, first amended petition, and the second order for
substitute service. The citation explicitly references only the first amended petition
as being attached, which makes sense because the first amended petition
superseded the original petition. See Tex. R. Civ. P. 65; FKM P’ship, Ltd. v. Bd. of
Regents of Univ. of Hous. Sys., 255 S.W.3d 619, 633 (Tex. 2008) (“Our rules
provide that amended pleadings and their contents take the place of prior
pleadings.”). Likewise, the second order for substitute service is the only relevant
order that could have been served on Jenna. There was no confusion in this case
regarding what documents should have been served and what documents were
served. See Heggen v. Graybar Elec. Co., No. 14-06-00058-CV, 2007 WL 43830,
at *2 (Tex. App.—Houston [14th Dist.] Jan. 9, 2007, no pet.) (mem. op.) (holding
slight language variation did not create uncertainty to a degree rendering service
defective); Herbert v. Greater Gulf Coast Enters., Inc., 915 S.W.2d 866, 871 (Tex.
App.—Houston [1st Dist.] 1995, no writ) (holding service was proper despite fact
the pleading being served was “original petition” and the return said a “complaint”
was served); see also Primate, 884 S.W.2d at 153 (holding service was not valid
where “the only proof that Primate . . . was served with anything at all is a return
which recites service of a pleading in which it had not been sued”); Daigrepont v.
Preuss, No. 05-18-01271-CV, 2019 WL 2150916, at *3–4 (Tex. App.—Dallas

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May 17, 2019, no pet.) (mem. op.) (holding service was not valid where order
required service of first amended petition and discovery requests but return
indicated original petition and a case information sheet were served instead).
Accordingly, we find no merit in Jenna’s second argument.

3. Where the Documents Were Taped

Lastly under this issue, Jenna argues that the process server’s return was
deficient because while the trial court’s order required that the return identify
where on the door the documents were taped, the return does not so indicate. While
Jenna is correct that this information was missing from the original return, the
information was ultimately supplied by the process server’s testimony at the
hearing on the motion for new trial. Under the Texas Supreme Court’s analysis in
Higginbotham v. General Life and Accident Insurance Co., such testimony—and
the trial court’s express holding that service was proper—effectively amended the
return to show strict compliance with the court’s order for substitute service. 796
S.W.2d 695, 695–97 (Tex. 1990).

Under Texas Rule of Civil Procedure 118, a trial court may authorize a proof
of service to be amended. Tex. R. Civ. P. 118. In Higginbotham, the original return
stated the time of service but did not indicate that the time of service was during
the defaulting company’s regular business hours as required by the statute under
which service was effected. 796 S.W.2d at 695. Evidence in a motion for new trial
hearing, however, established that the time of service was during the company’s
regular business hours. Id. at 696. In the order denying the motion for new trial, the
trial court expressly found that the company had been properly served under the
rules for service. Id. In its opinion, the supreme court reasoned that the trial court’s
finding that service was proper was sufficient to fulfill the requirement of an
express authorization to amend the return. Id. at 696–97 (“[W]e see no point in

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requiring the trial judge to sign a separate order labeled ‘Order Granting
Amendment of Return.’ The order signed by the judge in the record is tantamount
to an order amending the return.”).

As indicated above, essentially the same thing occurred in this case as
occurred in Higginbotham. The return lacked required information that was
provided by evidence at the motion for new trial hearing, and the trial court
expressly found that service was proper. Such finding under the circumstances was
tantamount to an express order authorizing amendment of the return. See id.; see
also Ulusal v. Lentz Eng’g, L.C., 491 S.W.3d 910, 916–17 (Tex. App.—Houston
[1st Dist.] 2016, no pet.) (applying Higginbotham); In re M.C.B., 400 S.W.3d 630,
634–35 (Tex. App.—Dallas 2013, no pet.) (applying Higginbotham and holding
trial court properly considered process server’s testimony that he affixed the
citation to the front door with duct tape). Cf. LEJ Dev. Corp. v. Sw. Bank, 407
S.W.3d 863, 867–68 (Tex. App.—Fort Worth 2013, no pet.) (citing Higginbotham
for proposition that amended return relates back to date of original return for
purpose of determining whether return was on file for the required period before a
default was taken). Finding no merit to any of Jenna’s arguments under her first
issue, we overrule the first issue.

II. Craddock

A. Standards of Review

In her second issue, Jenna contends that she established her entitlement to a
new trial pursuant to Craddock. Under Craddock, a default judgment should be set
aside and a new trial granted when the defaulting party establishes: (1) the failure
to appear was not intentional or the result of conscious indifference, but was the
result of an accident or mistake; (2) the motion for new trial sets up a meritorious
defense; and (3) granting the motion will occasion no delay or otherwise injure the
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plaintiff. 133 S.W.2d at 126. A party satisfies its burden as to the first Craddock
element when its factual assertions, if true, negate intentional or consciously
indifferent conduct by the defendant and the factual assertions are not
controverted. Sutherland, 376 S.W.3d at 755. When factual assertions are
controverted, the question of whether the failure to answer was intentional or the
result of conscious indifference is a fact question. Rhodes v. Kelly, No. 05-16-
00888-CV, 2017 WL 2774452, at *8 (Tex. App.—Dallas June 27, 2017, pet.
denied) (mem. op.); see also Est. of Pollack v. McMurrey, 858 S.W.2d 388, 391
(Tex. 1993). “Consciously indifferent conduct occurs when ‘the defendant knew it
was sued but did not care.’” Sutherland, 376 S.W.3d at 755 (quoting Fid. & Guar.
Ins. Co. v. Drewery Constr. Co., 186 S.W.3d 571, 576 (Tex. 2006) (per curiam)).
“Generally, ‘some excuse, although not necessarily a good one, will suffice to
show that a defendant’s failure to file an answer was not because the defendant did
not care.’” Id. (quoting In re R.R., 209 S.W.3d 112, 115 (Tex. 2006)).

B. Analysis

Jenna first points to her own testimony that she was not aware of any
attempts to serve her with process in this case and asserting she did not take any
steps to avoid being served. Jenna does not cite, however, any authority in support
of the position that this testimony alone was sufficient to establish the first
Craddock element.

Regardless, Jenna admitted that she received an emailed letter from Gary on
April 26, 2022, that discussed the divorce process, attached the original petition,
and encouraged her to accept service. She also acknowledged that he sent her a
waiver of service form, and she did not deny that Gary spoke to her dozens of
times about the divorce during the summer of 2022 when asked if she recalled
those conversations.

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Gary testified that prior to the filing of this case, they spent almost a year in
couple’s therapy where divorce was discussed as an option. He said that he first
told Jenna about the divorce filing in April 2022 before sending her the letter with
the attached petition. He subsequently sent her an email that included a list of
attorneys who could help them and attached a service waiver. In a text exchange,
Gary then asked Jenna to “[p]lease sign the waiver of service,” to which, Jenna
responded by asking about their daughter. Gary further testified that he notified
Jenna when he filed the amended petition seeking custody of their daughter, but
again, he got no response. Although Jenna testified that at some point, she decided
to stop reading Gary’s texts and emails, Gary testified that he informed Jenna
about the divorce proceedings and the fact someone was trying to serve her not
only through texts and emails but also in dozens of telephone conversations and by
discussing the matter in person with Jenna’s mother. Gary stated that he informed
Jenna about the lawsuit, citation, and waiver. Several exhibits were also admitted
that support Gary’s testimony.

Jenna’s factual assertions about her alleged lack of awareness regarding the
lawsuit were certainly controverted, and as factfinder, the trial court was free to
accept Gary’s testimony and exhibits over Jenna’s testimony. See Sutherland, 376
S.W.3d at 755; Est. of Pollack, 858 S.W.2d at 391; Rhodes, 2017 WL 2774452, at
*8; see also Paul v. ATX Lender 5, LLC, No. 03-21-00346-CV, 2023 WL 1998890,
at *5 (Tex. App.—Austin Feb. 15, 2023, no pet.) (mem. op.) (holding trial court
would not have abused its discretion by finding defendant did not prove that his
failure to answer or appear was not intentional or the result of conscious
indifference but due to an accident or mistake where defendant’s assertions
regarding knowledge of lawsuit were controverted); Hickey v. Vanderbilt Mortg. &
Fin., Inc., No. 11-18-00088-CV, 2019 WL 3727634, at *4 (Tex. App.—Eastland

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Aug. 8, 2019, no pet.) (mem. op.) (holding trial court could have reasonably found
that defendant’s failure to answer was the result of conscious indifference where
evidence indicated defendant was aware of lawsuit and of attempts to serve him
with process).

Additionally, Jenna contends that the facts of this case are analogous to
those addressed by the Texas Supreme Court in In re Marriage of Sandoval, 619
S.W.3d 716, 721 (Tex. 2021). In Sandoval, the respondent in a divorce case filed a
motion for new trial after a default final decree was rendered, asserting that
although he did not object to being divorced or to the court making necessary
orders, he had been unaware that the petitioner was seeking real property in the
divorce proceedings that respondent claimed was his separate property and not part
of the community estate. Id. at 720. In reversing the default decree, the supreme
court reasoned that respondent provided a reasonable explanation for his failure to
answer—he did not contest the divorce itself and was unaware she was seeking his
separate property until after he saw the decree. Id. at 723.

Jenna contends that the present case is controlled by the holding in Sandoval
because she, too, has a separate property claim that was effectively resolved in the
default final decree. Specifically, Jenna contends that her separate property funds
were used for the down payment on the marital home purchased in 2014. Gary
disputes this claim, but even if the down payment funds were Jenna’s separate
property, she acknowledges that the marital home itself was community property.
She therefore would have known that the home would be a part of any divorce
proceedings. Accordingly, Sandoval is readily distinguishable and not controlling.

Jenna’s arguments under her second issue are without merit. Accordingly,
we overrule the second issue.

Sufficiency of the Evidence
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Lastly, in her third issue, Jenna contends that the evidence was legally and
factually insufficient to support the division of the marital estate in the default final
decree. Specifically, Jenna insists that the evidence was insufficient to support
Gary’s evaluation of a Fidelity financial account in her name at $175,000.

The Family Code requires the trial court in a divorce proceeding to “order a
division of the estate of the parties in a manner that the court deems just and right,
having due regard for the rights of each party and any children of the marriage.”
Tex. Fam. Code § 7.001. We review a trial court’s division of property under an
abuse of discretion standard. Quijano v. Quijano, 347 S.W.3d 345, 349 (Tex.
App.—Houston [14th Dist.] 2011, no pet.). A trial court abuses its discretion when
it acts arbitrarily or unreasonably or without reference to any guiding rules or
principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241–42 (Tex.
1985). Assessments of the legal and factual sufficiency of the evidence are not
independent grounds for reversal in this context, but they are relevant factors in
assessing whether the trial court abused its discretion. Quijano, 347 S.W.3d at 349.

The value of community assets is generally determined as of the date of
divorce or as close to that date as possible. Id. The values of individual items are
evidentiary to the ultimate issue of whether the trial court divided the properties in
a just and right manner. Walsh v. Walsh, No. 14–10–00629–CV, 2012 WL
3016845, at *1 (Tex. App.—Houston [14th Dist.] July 24, 2012, no pet.) (mem.
op.).

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. Therefore, when a
respondent fails to answer, the petitioner still must present evidence to support the
material allegations in the petition and the default judgment is subject to challenges
to the sufficiency of the evidence. See, e.g., In re Marriage of Williams, 646

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S.W.3d 542, 544–45 (Tex. 2022); Vazquez v. Vazquez, 292 S.W.3d 80, 83–84
(Tex. App.—Houston [14th Dist.] 2007, no pet.). In reviewing Jenna’s third issue,
we utilize the same standards regarding legal and factual sufficiency of the
evidence as set forth above. To determine whether a trial court abused its
discretion because the evidence was legally or factually insufficient to support its
decision, we consider (1) whether the trial court had sufficient evidence upon
which to exercise its discretion and, if not, (2) whether the trial court’s division of
the community estate was so unjust and unfair as to constitute an abuse of
discretion. Williams, 646 S.W.3d at 545.

In his inventory, which was admitted at the default judgment hearing, Gary
assigned a value of $175,000 to the Fidelity brokerage account. During the hearing,
he acknowledged he did not have access to the account but explained that the
appraised value was an approximation based on Jenna’s history of funding the
account and the balance Gary had seen in the account a few years before. He
averred that he had “good reason to believe” the estimated value.

Jenna argues that this case is analogous to Fuentes v. Zaragosa, 555 S.W.3d
141 (Tex. App.—Houston [1st. Dist.] 2018, no pet). In Fuentes, our sister court
concluded that the trial court lacked sufficient evidence to identify the scope of the
community estate where the petitioner failed to provide any valuation evidence, or
even values, for numerous community assets, including businesses, airplanes, and
yachts. Id. at 164–65. In contrast, Jenna here complains about the valuation of only
one asset, the Fidelity account, and Gary testified as to the value of that asset based
on his personal knowledge regarding the historic contributions to that account and
the previous balance in that account. Moreover, beyond a cursory statement, Jenna
does not offer any substantive challenge to the trial court’s division of the marital
estate as being so unjust and unfair as to constitute an abuse of discretion.

17
Williams, 646 S.W.3d at 545; see also Tran v. Hoang, No. 08-22-00100-CV, 2023
WL 4441138, at *5 (Tex. App.—El Paso July 10, 2023, no pet.) (mem. op.)
(overruling challenge to trial court’s division of marital estate where party only
challenged valuation and did not offer an argument as to why the division was
unfair and unjust). Jenna has not established that the trial court abused its
discretion in its division of the marital estate. Accordingly, we overrule Jenna’s
third issue.

We affirm the trial court’s decree.

/s/ Frances Bourliot
Justice

Panel consists of Justices Bourliot, Zimmerer, and Spain.

18